[governance] The Internet (as we know it) can never be "private"

[Paul Lehto]

The Washington Post takes as a truism this statement it published today:

"The Internet is a powerful tool for innovation and expression because
it allows information and ideas to flow freely."

Information and ideas do not "flow freely" on anything that is plainly
and simply "private property."

The very essence of property interests in general features this common
thing:  The right to exclude, or exclusive use.  If one owns real
property (land), they can exclude trespassers.  If they own a
trademark, they can exclude others from using that mark in confusing
ways.  If they own a copyright, they have exclusive use of that text
and may prevent others from using it unfairly.

If the internet were predominantly "private" in any non-misleading
sense of the term "private" it could never -- on the whole-- allow
information and ideas to flow freely.  Thus, while the internet surely
features countless privately owned things like websites and so forth,
the value of the internet can never come from the exclusive rights of
property, which is by legal definition not something freely shared, it
is something exclusively owned with access to others significantly or
totally restricted.

The dream of the internet, at least for many people, of an open place
where people meet and thus all kinds of things are facilitated -- from
commerce to communication -- is in the nature of what's called "the
commons".  The commons is kind of a public area, such as a public
square, free to all, but often with "private" vendors offering
additional goods or services for a fee.

It feels to me like some have noted the countless private individuals
and private vendors who have flocked to the public commons called the
internet, and because there are so many vendors and people in the
commons, have concluded that the *commons* is private, that the
Internet is private.  In fact, the internet as people experience it
really only has private components but cannot be said, without being
misleading, to be "private" on the whole or in general.  The most
critically valuable and crucial aspects of the internet (even if by
some method of "counting" they are only 1% or less of the whole) is
that which is either owned or operated as a "commons" - and therefore
experienced as free to all.  Sure, somebody has to pay for the commons
somewhere (taxes support the "public square") but the economic aspect
to the commons does not defeat its status as commons.

Even private property owned by a single individual can, by the choice
of the owner, be operated as a commons or like a commons.  (An
individual can make a park on her own land and invite all to use it
for free.)  It's nice if someone chooses to do this, but we can't rely
on the largesse of private individuals if we wish to keep a commons
going because they can change their mind at any time, and close the
gates of the park for any reason.

No matter what numbers or factors one may focus on, the core of what
is loved about the internet is its aspects that are most like the
traditional public commons - a place to freely meet, greet and
transact business.  Even if, once in the commons, we decide to join a
more truly "private" party - with a cover charge to get in and "riff
raff" not allowed in -- we may then be in a more exclusive "private"
party, and "private" has more meaning here.  But we still used the
commons to GET TO the private party we prefer, and without that
commons the private party couldn't have happened across the distances
typically involved.

If our guiding star principle were to be that the Internet is
"private" it would kill the core value of the internet as we know it.

This doesn't mean that the Internet *could not* be made much more
private.  Just recently, I've pointed to examples of just such a
development, where public law-making authority about the internet is
delegated to a private corporation.  But the more we make, or even
just think the internet is "private", the more we tolerate exclusion
(which is the common essence of all property interests).  And, the
more we tolerate or implement exclusion, or the more we give power to
forms of governance like corporations that, being property interests
themselves, have exclusion as part of their structural essence, the
more we kill the Internet as the open marketplace of friendship,
communication and commerce that is what most people think is the
greatest thing about it.

Paul Lehto, J.D.


-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026 (cell)
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