Mutale Nkonde: Good after­noon every­body. It is my absolute plea­sure to be host­ing this, what I hope will be a live­ly and enter­tain­ing con­ver­sa­tion. My name’s Mutale Nkonde. I am a 20192020 fel­low at the Berkman Klein Center for Internet and Society. I like to call myself part of the COVID cohort. And this after­noon it is my absolute great plea­sure to be host­ing a con­ver­sa­tion on how the man­i­festo of cyber­space could poten­tial­ly be applied to these times.

It is my absolute plea­sure to be work­ing along­side Annabel Kupke, who will be mon­i­tor­ing our ques­tion and answer func­tion. And just throw­ing it over to Annabel to tell us the rules of engage­ment for the day.

Annabel Kupke: Hi every­one. My name is Annabel. Thanks Mutale. We do have the chat dis­abled right now, but you can feel free through­out the webi­nar to sub­mit ques­tions via the Q&A. And we’ll be mark­ing those as answered towards the very end when we start to engage in the ques­tion and answer.

Nkonde: Perfect. So, this is a con­ver­sa­tion about John Perry Barlow’s work. So we thought that it would only be fit­ting to make sure that he too can be part of the dis­cus­sion, and for those who don’t know real­ly ground us in the themes of the day. So with­out fur­ther ado, let me intro­duce the Declaration of Independence of Cyberspace.

Voiceover: John Perry Barlow is a for­mer song­writer for the Grateful Dead, and the joint founder of the Electronic Frontier Foundation, which lob­bies for cyber rights. He shares Eric’s con­cerns for the future of free speech on the Internet.

John Perry Barlow: What we’re deal­ing with is the bat­tle between the future and the past. Between the pow­ers that were and the pow­ers that have yet to be.

Voiceover: John believes the Internet will change the world much like the Industrial Revolution did at the end of the 19th cen­tu­ry. He has craft­ed his own dec­la­ra­tion of inde­pen­dence for the cit­i­zens of cyber­space.

Barlow: Governments of the Industrial World, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not wel­come here. You have no sov­er­eign­ty where we gath­er. You do not know us, nor do you know our world. Cyberspace does not lie with­in your bor­ders. Your legal con­cepts of prop­er­ty, expres­sion, iden­ti­ty, move­ment, and con­text do not apply to us. They are all based on mat­ter, and there is no mat­ter here.
Video clip

So that’s the dec­la­ra­tion, and that’s real­ly what we’re going to be ground­ing our con­ver­sa­tion in over the next forty-five min­utes. So with­out fur­ther ado I’d like to intro­duce the peo­ple on our pan­el. The first is a friend of mine, Jonathan Vincent Pace. He has his PhD from the Annenberg School of Communication and holds degrees from the Center for Media and Culture at New York University.

I’m a fel­low at the Center of Digital Civil Society at Stanford where Jonathan is a post-doc. And he is teach­ing a year-long course on the ear­ly his­to­ry of the Internet. So for Stanford stu­dents, that’s some­thing that if you did­n’t go you missed out. I thor­ough­ly enjoyed and I hope you’ll take wher­ev­er you teach. And you can get hold of him at @jonathanvpace on Twitter.

He’s gonna be in con­ver­sa­tion with Professor Charlie Nesson. He’s the William F. Weld Professor at Harvard Law School and the founder of the Berkman Klein Center, and actu­al­ly the per­son that admit­ted John Perry Barlow as the first fel­low. So in that vein, I’m one of the descen­dants of that first class.

And the first thing I’d like to ask you Jonathan ini­tial­ly as our guest is to intro­duce your­self and your work, and real­ly let the audi­ence know what your rela­tion­ship is with Barlow.

Jonathan Vincent Pace: Sure. Thank you so much for hav­ing me. I write about the role of reg­u­la­tions and insti­tu­tions on the Internet. And right now I’m tak­ing up this top­ic in a his­tor­i­cal con­text. And I’m study­ing Barlow because I’m writ­ing a book about the his­to­ry of cyber­lib­er­tar­i­an­ism, which I define as the idea that the Internet should nev­er be reg­u­lat­ed and should nev­er be the object of state involve­ment. And the lec­ture I’m fin­ish­ing up today is about the events sur­round­ing the Communications Decency Act, and the Declaration of the Independence of Cyberspace was a real­ly direct response to that piece of leg­is­la­tion.

And I look at the cir­cu­la­tion of this way of think­ing among hack­ers, ear­ly adopters, com­put­er pro­fes­sion­als, indus­try exec­u­tives, civ­il soci­ety advo­cates, and tech­nol­o­gy lob­by­ists in the 1990s and the 2000s, kind of a crit­i­cal phase of this, many of whom had very lit­tle in com­mon and end up con­verg­ing on a very spe­cif­ic lib­er­tar­i­an nar­ra­tive about the Internet and the state, accord­ing to which the state was over­bear­ing, intru­sive, com­pro­mised, unin­formed, and there­fore a threat to the Internet as a sphere of free­dom, indi­vid­u­al­ism, com­pe­ti­tion, and inno­va­tion.

And the Declaration was real­ly just par­rot­ing that cyber­lib­er­tar­i­an doc­u­ment. And at least on that video, Barlow real­ly mapped the lib­er­tar­i­an nar­ra­tive that I just men­tioned onto a kind of the­o­ry of his­to­ry itself so that you had this insti­tu­tion­al past ver­sus a tech­no­log­i­cal future, with reg­u­la­to­ry attempts actually…moments in which the state or insti­tu­tions were try­ing to kind of hold on to the past, hold on to their estab­lished author­i­ty structures—a kind of back­lash against this lib­er­tar­i­an future that dig­i­tal tech­nol­o­gy was inau­gu­rat­ing.

And part of the sto­ry here is the role of thought lead­ers in artic­u­lat­ing this nar­ra­tive, both with­in the tech­nol­o­gy com­mu­ni­ty and to the pub­lic, espe­cial­ly the press. And Barlow is such a key play­er here because not only was he a won­der­ful­ly charis­mat­ic spokesper­son for the Internet on the nation­al stage with these kind of end­less interviews—everyone was very charmed by him, but he was also this incred­i­ble social poly­glot, where he could speak the lan­guage of hack­ers, and hate on Microsoft. And he was a founder and active mem­ber of the EFF and could talk in civ­il lib­er­ties terms. He spoke to indus­try; he gave speech­es at Apple and pro­fes­sion­al asso­ci­a­tions. He was briefly cozy with Al Gore, part of his kind of tech­nol­o­gy brain trust.

And so he moved with such grace between all of these dif­fer­ent groups and real­ly helped pro­vide this mas­ter lan­guage that could con­nect them all despite their dif­fer­ences.

Nkonde: So kind of on that, know­ing him in his death, I real­ly would like to hear from you, Charlie, the same ques­tion. Obviously I don’t want you to…you know, intro­duce your­self com­plete­ly to the Harvard com­mu­ni­ty because we do you know know. But what I’m real­ly inter­est­ed in is your con­nec­tion to Barlow in his life, and the devel­op­ment of the EFF and the man­i­festo in which we’re real­ly ground­ing this con­ver­sa­tion today. Can you pro­vide us with more con­text?

Charles Nesson: Well, the time is 1998. That’s when I asked Barlow to be a fel­low. He is just as you say say: see­ing the ene­my as the state, the sur­veil­lance state that tried to break into the young hack­ers who were doing tele­phone hack­ing and so forth. And it’s out of that that his tremen­dous spir­it grows, expressed in the Electronic Frontier Foundation.

But, what also hap­pens in 1998—and under­stand, 1998 is a year—it’s before we have Google. We’re pre-Google, alright. We’re in an envi­ron­ment where we are pre-commerce. The advent of com­merce comes with eBay, 1998. So Barlow is speak­ing to the pow­ers at Davos on behalf of a uni­ver­si­ty com­mu­ni­ty and say­ing to the state, Keep your hands off us!”

Alright. And along comes the cor­po­ra­tions. Now Barlow ini­tial­ly sees cor­po­ra­tions as star­tups. It’s where all of Silicon Valley is. But the thing that Barlow was miss­ing in his imag­i­na­tion at that time was the over­whelm­ing force of the cor­po­rate world and money-making, and the estab­lish­ment of data as almost like a cur­ren­cy.

Alright so, now back up then to what Mutale quotes from the Declaration. Barlow is speak­ing of a mind space. He’s say­ing this is not a place built of mat­ter. This is a place of mind. This is free­dom. We have free­dom. And he’s say­ing to the state, Keep your hands of it.” Alright. Now, if you move fast for­ward to a time when we all feel incred­i­bly con­strained on the net by the force of its open­ness, the force of the fact that it’s now pop­u­lat­ed with major cor­po­ra­tions that’re try­ing to get some­thing out of us that we have, and do it as sub­tly and all that kind of stuff, it’s like hos­tile space. It’s like sur­veil­lance space.

Nkonde: So that actu­al­ly brings me quite nice­ly to my next ques­tion.


And my ques­tion really—and I’ll go back to Jonathan first again as our guest but cer­tain­ly I love the way that you’re bounc­ing off each oth­er. My ques­tion is around, giv­en the mod­ern Internet, the day that we’re in now and how Charlie is ref­er­enc­ing sur­veil­lance—


—the ques­tion I’m pos­ing is can there be gov­er­nance struc­tures or pro­to­cols that main­tain this free­dom that then kind of pro­tect us from forces of sur­veil­lance or oth­er poten­tial­ly dark­er” ways of mak­ing mon­ey on the net.

Pace: Sure. And I think this hooks nice­ly with what Charlie just said. Because the way I see it is that part of what hap­pened in the 90s was there was this kind of mantra that the state should­n’t reg­u­late, the Internet should­n’t be reg­u­lat­ed. And so by the time you get into the 2000s, there was this igno­rance of the pow­er that indus­try would soon have in the Internet space. And at the same time that kind of ene­my was being ignored, the state had been told over and over again that it should­n’t reg­u­late.

And so as the pow­er of indus­try is grow­ing, that which would pre­sum­ably reg­u­late the indus­try, the state, had kind of been hand­i­capped by this way of think­ing about the Internet and state. And so the kind of take­away from a lot of this is that by insist­ing that the Internet should­n’t be reg­u­lat­ed, the adher­ents of cyber­lib­er­tar­i­an­ism kind of stalled the devel­op­ment of a nuanced reg­u­la­to­ry con­ver­sa­tion pre­cise­ly at the moment that all of these indus­try play­ers were sky­rock­et­ing. And so the gap between the size and com­plex­i­ty of these dig­i­tal systems—especially the com­mer­cial systems—and the sophis­ti­ca­tion of the reg­u­la­to­ry con­ver­sa­tion was so enor­mous… I mean, it’s there for any tech­nol­o­gy but in this case you had this con­cert­ed group of peo­ple who were rel­a­tive­ly pow­er­ful in indus­try and civ­il soci­ety and the gov­ern­ment real­ly hold­ing this reg­u­la­to­ry con­ver­sa­tion back.

And so, by the time we get to where we are today, there’s a kind of like twen­ty, thirty-year gap between the tech­nol­o­gy and the reg­u­la­to­ry con­ver­sa­tion that’s meant to address it. And so I think part of what’s going on now, espe­cial­ly in Internet stud­ies, is this kind of scram­ble to you know, catch up to do decades of work of reg­u­la­to­ry think­ing in you know, a mon­th’s time. After Zuckerberg tes­ti­fied in Congress a while back, I remem­ber there was a Wired arti­cle, and the head­line just cap­tured it all for me. It said, what would reg­u­lat­ing Facebook look like? And I just thought to myself you know, here’s this mam­moth machine, and we’re still at the base­line lev­el of the con­ver­sa­tion where we’re not even real­ly sure okay, is it indus­try reg­u­la­tion, is it com­pa­ny reg­u­la­tion, is the state doing it, is civ­il soci­ety doing it? So you know, the work we have to do now is so immense in kind of catch­ing up with where the sit­u­a­tion is now. So that’s kind of…it’s kind of in response to what you were say­ing and in response to what Charlie was say­ing. I want to give him a chance to talk.

Nkonde: Yeah. Charlie, I would be real­ly inter­est­ed in your views on how can we close that gap that Jonathan is describ­ing—


Nesson: He’s cer­tain­ly right that if you’re look­ing to the ques­tion how can the whole thing be reg­u­lat­ed, how can one get con­trol of this whole envi­ron­ment, so as to cre­ate a world in which those orig­i­nal free­doms that Barlow was talk­ing about are shared by every­one, the answer is you can’t do it. But if you go back to Barlow’s dec­la­ra­tion and under­stand that what he’s try­ing to pre­serve into the future is free mind space and you ask well, what are the insti­tu­tions in our glob­al envi­ron­ment that are ded­i­cat­ed to the preser­va­tion of free mind space, the answer isn’t the gov­ern­ment. And the answer isn’t cor­po­rate, glob­al cor­po­rate cap­i­tal­ism. The answer is uni­ver­si­ties. That’s what we’re about. And so your ques­tion to me I reframe what could uni­ver­si­ties do to pre­serve free mind space into the future for our stu­dents?” Not what can we do to reg­u­late the whole uni­verse of trolls and Facebook and— [record­ing freezes].

Alright so, that then directs the ques­tion of the uni­ver­si­ty as a polit­i­cal force. And rec­og­nizes that if the uni­ver­si­ty were to under­take cre­at­ing for its stu­dents free mind space and pro­tect­ed against sur­veil­lance from the out­side forces of cor­po­rate and state, then we would be on the road to pre­serv­ing Barlow’s free mind space.

Nkonde: Excellent, excel­lent. And my next ques­tion real­ly goes onto that. So, going back to the Manifesto as our guide for this con­ver­sa­tion, one of the things that real­ly stood out to me as some­body who’s real­ly inter­est­ed in the embod­ied net is this idea that he says, We are cre­at­ing a world that all may enter with­out priv­i­lege, prej­u­dice [accord­ed by] race.” And my ques­tion is real­ly ground­ed in the Internet of 2020 where we do have—we’re all on Zoom, we’re on Zoom right now, because we can’t togeth­er phys­i­cal­ly. But we do have actors on the net who are embody­ing racism, sex­ism, homo­pho­bia. And I guess the most crys­tal exam­ple of that would be Zoombombing. So my ques­tion to you, Jonathan, as you’re going through these archives and as you’re writ­ing this book, could you com­ment on how Barlow seems to think about iden­ti­ty, if at all on the Web? And if iden­ti­ty isn’t thought about, giv­en this quote, could you speak a lit­tle bit more about iden­tity­less­ness and what you think he’s try­ing to get to through—


Pace: …and you know, Barlow is on the record ear­ly on say­ing that cyber­space is very white, very male, very straight. And so he’s clear­ly aware of the demo­graph­ic bias of the medi­um at the time. And you know, he’s mak­ing these state­ments in the pop­u­lar press real­ly when no one else was. Um—


Nkonde: And so Charlie, one of the things that I would be inter­est­ed in is that you’re… You know, one of the things I know you for the most is Threads, right, which just is unstruc­tured, pseu­do­ny­mous space that I think real­ly grows out of the quote from Barlow that I just took from the man­i­festo. So I would be real­ly inter­est­ed how in 2020, since my the­sis is that’s com­plete­ly impos­si­ble, we are all embod­ied on the net, could you speak a lit­tle bit more about Threads and how we can get back to those kind of ear­ly days of the 90s when we were dial­ing up and we lit­er­al­ly did­n’t know if we were speak­ing to a dog or a car­rot but we were both on the Web and chat­ting it up in chat rooms.


Nesson: Instead of speak­ing, let me do it indi­rect­ly. Instead of speak­ing to Threads, let me speak instead to free mind space. And then Threads you’ll see approach­es it.

Nkonde: Okay.

Nesson: For me, free mind space in this COVID moment of ours is the space on my side of the screen. On my side of the screen, I’m free. I can turn sound off. I can turn pic­ture off. I can say any­thing I want with sound off and pic­ture off. I can be unrecord­ed. Compare that, con­trast that, to what is now through the screen. Through the screen is record­ed space. That’s not space in which I have con­trol. That’s space in which what I say is there for­ev­er. And who knows who has access to it after this?

If we’re talk­ing about incom­ing stu­dents in September, new­bies to Harvard Law School, their first step appar­ent­ly will be into Zoom space, with an announce­ment that it’s being record­ed. And there they’ll appear as blocks on a screen, with a pro­fes­sor able to ask any­one a ques­tion, cold call. And their answer is open, not only to their class­mates but who knows where the record­ing of it goes after that. That’s sur­veil­lance space. And when you think about what is dif­fer­ent in this space from what was true of res­i­den­tial uni­ver­si­ty before the world of COVID, before the world of COVID we had all sorts of ways of relat­ing to each oth­er as indi­vid­u­als in unrecord­ed space.

Now, just focus on the word pri­va­cy.” We’re all advo­cates of pri­va­cy. But what is pri­va­cy? I believe that at core, pri­va­cy is Barlow’s free mind space. And any intru­sion on free mind space is in its way an intru­sion on the pri­va­cy that I have when I can think and speak and solil­o­quy unrecord­ed.

Alright. So, now for me, putting myself in the posi­tion of a new stu­dent com­ing in to Harvard. To start bang, right off the bat into sur­veil­lance space, exposed to every­one, is the rough­est pos­si­ble start. And the ques­tion is is it pos­si­ble to enter a new dig­i­tal domain, a new com­mu­ni­ty that is con­nect­ed with oth­ers dig­i­tal­ly but not in real-world prox­im­i­ty? Is it pos­si­ble to build a class in dig­i­tal space, start­ing from a true safe start­ing point for par­tic­i­pants, in which a grad­ual process of extend­ing your­self and show­ing and shar­ing the inti­ma­cies that com­prise your pri­va­cy, con­nect­ing with oth­ers in a group to form bonds of trust.

That’s new ter­ri­to­ry. And it’s new ter­ri­to­ry for uni­ver­si­ty. At the moment, we’re all in the process of try­ing hard to repro­duce what we had before, in dig­i­tal space. We’re not a res­i­den­tial uni­ver­si­ty in September. But let us repro­duce what we remem­ber as best we can. That’s a good idea, it’s fine, it’s total­ly pre­oc­cu­py­ing. It’s lead­ing fac­ul­ty to have to do a whole lot of stuff they’ve nev­er done before, so they’re total­ly engaged with the chal­lenge of it. But none of those things are addressed to how do we use this new space in a way that has new uses.

Nkonde: Right.

Nesson: What are the affor­dances of this space for us to devel­op in ways that we could­n’t before? And for me, it comes back down to a respon­si­bil­i­ty on uni­ver­si­ty to pro­vide unrecord­ed spaces for our stu­dents. It runs against the data-gathering research ori­en­ta­tion of, Oh good, every­thing is now online. We can mea­sure every­thing.” That’s sur­veil­lance space. And I believe that’s fun­da­men­tal top-down cor­po­rate think­ing.

Nkonde: Right. So you would argue that that isn’t Barlow-esque. That was not his inten­tion when he was at Davos giv­ing this man­i­festo. He was­n’t think­ing about this monetized…surveillance…kinda you know, panop­ti­con. It was much more of this freethinking—frontier, lit­er­al­ly a fron­tier, this kind of free­think­ing. That’s inter­est­ing. The one thing that you did­n’t answer, I will say Charlie, is this idea that it could be with­out priv­i­lege, prej­u­dice, or accor­dance to race. Do you—


Nesson: …uh, as a teacher, pro­fes­sor, my classes…that’s giv­en to me by the Harvard University admis­sions process. I believe Harvard does a remark­able job of select­ing peo­ple to make up our class­es. And in it’s way it’s what makes our uni­ver­si­ty tremen­dous­ly valu­able as a com­mu­ni­ty for those who par­tic­i­pate in it. One devel­ops a net­work, and a net­work that can last you through life, with peo­ple you respect. So, for starters, the class­room that we have is not the open nest. And it’s con­sti­tut­ed in ways that the admis­sions com­mit­tee deter­mines, under all sorts of eth­i­cal and legal con­straints just as you’re describ­ing. And that is to make the assump­tions start­ing out in a class, We’re are all here. We’re all equal. We’re a group put togeth­er with­out bias. Whatever bias there is in this group we bring into it.” That’s a start­ing place for a group, and a start­ing place for the devel­op­ment of the kind of self-sovereignty with­in a group that con­sti­tutes cit­i­zen­ship.


Nkonde: …yeah, though Barlow in his speech at Davos, May it be more humane and fair than the gov­ern­ments have made it before.” And I would def­i­nite­ly be very inter­est­ed… I’m gonna go to you first, Charlie, because we’ve just heard from Jonathan. Around this time, giv­en that you were there lit­er­al­ly on site. You hear the speech at Davos. He becomes the first fel­low. Ultimately lead­ing to what I call now the COVID cohort, of which I am part. Can you kind of describe…not just the con­ver­sa­tions, the mind space, like the intel­lec­tu­al for­mu­la­tion of this idea of fair­ness and human­i­ty in—


Nesson: Well that’s a won­der­ful ques­tion, Mutale. In my own work, I nat­u­ral­ly am attract­ed to human­i­ty’s think­ing about law. And specif­i­cal­ly the law of the jury. That is how does one decide what’s true? And the jury for me it is an inspi­ra­tion in the sense of first of all, it describes the kind of small group envi­ron­ment that John’s refer­ring to. It’s got an inti­ma­cy to it. It lends itself to small-group inter­ac­tion.

Second, it’s premised on the idea of equal­i­ty. Everyone’s vote is equal. And so, for me to explore the evo­lu­tion of that form of deci­sion­mak­ing as a sub­ject mat­ter for a class that’s actu­al­ly itself explor­ing the sov­er­eign­ty of its own space is a very inte­grat­ed form of approach.


I real­ly do believe that there’s an edu­ca­tion to be offered now about cyber­space that is to under­stand space in terms of the expe­ri­ence we have on this side of the screen, on that side of the screen. To under­stand the effect on space of being record­ed, of being not record­ed. Of being in a small group. All of these ele­ments now are lead­ing us to dif­fer­en­ti­ate dis­course spaces accord­ing to their archi­tec­ture, their dig­i­tal archi­tec­ture. And that itself is a sub­ject of intense inter­est for peo­ple grow­ing up now in this envi­ron­ment. It’s like pred­i­cate knowl­edge about the frame in which we learn, and under­stand­ing that the frame in which we learn is one of our most pow­er­ful teach­ers. It’s real­ly the envi­ron­ment in which we come to con­clu­sion


…and very apt to this cope with moment.


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