This blog entry was prompted by the reflections of Andrew Curry in his blog "thenextwave" in a piece entitled "Twittering about the law". Andrew's thoughtful piece does not entirely convince me of its stated premise: "The story of Twitter and the super-injunctions isn’t about technology. It’s about power, fairness, and history."
It seems to me that the super-injunctions issue is part of a larger range of issues that are very much about technology and its effects on every aspect of life, including power and fairness.
One major effect is on jurisdiction - the sphere of authority of a legal system and the limits within which its power may be exercised, or within which a government or a court has authority.
In the instance of super-injunctions, once foreign-based technology is involved, this quirky piece of British legal practice is confronted with the legal systems of other countries. Any attempt by British courts to extend their rulings abroad will run up against the principles and practices of foreign jurisdictions such as the First Amendment in the United States.
This is a relatively trivial instance of jurisdiction vs. technology. More serious examples abound wherever governments (e.g. China, countries involved in the "Arab Spring") invoke or indeed enact legislation that intends to limit their citizens' access to information and their ability to exchange information. Assertions that popular uprisings have been driven by social media - "Twitter revolutions" - are all too often hyped up, but they are not without foundation. Whether or not technology has played a decisive role, it has most certainly played a significant role because, in many cases, the technology has been located outside the jurisdiction of the country concerned. This has limited the ability of the rulers to control information. It has enabled citizens to access channels of information and communication not controlled or approved by their rulers.
This leads on to the effect that technology has on the spread of ideas and its effect on norms, which in turn affect how citizens perceive the legitimacy of the laws and norms governing them. This is fundamental to the notion of "social contract" that Andrew highlights in his piece.
A recent example is the arrest of IMF managing director Dominique Strauss-Kahn in New York on May 14th. In reporting the events, the French media were caught between their customary discretion in reporting the private lives of politicians, and the intense interest of some French citizens visible on social media. In the days following the arrest, the #DSK hashtag on Twitter created a stream of several tweets per second, most of them in French and many linking to reports in foreign media. In particular many French tweeters commented on the photos of DSK in handcuffs doing "the perp walk" - an indignity totally foreign to powerful people in France.
Whether or not all this has prompted real soul-searching and "A Change in French Sexual Views" remains to be seen. What is beyond doubt is that technology is giving citizens the tools to exchange opinions on a large scale, in a compressed time frame, and to channel them into the online equivalent of a crowd (using hashtags, for example). The online crowd, like a mob, is not immune to disinformation and stampeding, but it does have rapid access to higher quality information than mobs had in pre-technological times. When enough people use online tools to spread forbidden information (e.g. super-injunctions) or to spread information and opinions normally kept outside public discourse by those who control it (e.g. the sexism of French institutions), then technology is proving to be a significant factor in de facto challenges to the legitimacy of laws and norms.
This leads to another important issue, which is that technology raises thorny moral questions in every sphere it touches. Challenging the legitimacy of laws and norms seems to be on the side of the common good in some cases such as super-injunctions and institutional sexism. However, there are plenty of instances where technology enables deliberate or de facto challenges to legitimacy where the common good is arguably not fostered.
Access to extreme pornography, paedophilia groups. and racist or terrorist "how-to" manuals are obvious cases. Less extreme but thornier cases are access to suicide groups and to sites that enable users to break Intellectual Property laws by hacking software and swapping files.
And so to power, fairness and history. Whether it's Twitter and super-injunctions, social media and popular uprisings, or simply people getting hold of stuff they want, technology most certainly shifts the balance of power away from those who hold it by virtue of money or institution, and towards the citizens. In this sense, technology is a factor promoting greater "fairness". However, it's a morally-neutral fairness. It means that ordinary citizens have greater power than they ever did to pursue their own ends. As with the rich and powerful, the ends of ordinary citizens may be moral or immoral, good or bad, fair or unfair.
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