2021 Klinsky Lecture, Harvard Law School

Klinsky Lecture: Technology in the Public Interest
Harvard Law School
April 2021
John Palfrey

Thank you, Dean Manning, for your kind introduction and for the opportunity to serve as the Klinsky Visiting Professor of Practice for Leadership and Progress in this auspicious year. It is such a treat to be back with all of you at Harvard Law School–and to have been able to teach again this year, fittingly enough, given our topic today, by Zoom. Thank you, Steven and Maureen Klinsky, for being with us today and for your exceptional generosity to our shared alma mater. I cherish this appointment and the chance to be the 2021 Klinsky Visiting Professor. Thank you to Catherine Cronin in the dean’s office, Steven Oliveira and the team in the development office, Urs Gasser and all those at the Berkman Klein Center who have helped to sponsor and put on this event today.

Thank you to Professor Martha Minow who will close us out today–and who had the vision, while she was herself the dean, to imagine this gift with the Klinskys and, I suspect, to shape both this professorship and the lecture series. Finally, thanks to all of you who have joined us and will participate today. In particular, thank you to Isabella Berkley, Madeleine Matsui, and Jess Valenzuela Ramirez, all members of the Harvard Law School Class of 2023–and students in the course I taught this Winter term, entitled Technology and the Public Interest. Isabella, Madeleine, and Jess will be the initial respondents after my remarks this afternoon. I am honored by their presence and willingness to serve this role.

We have learned many things, all of us, in this past year-plus of the COVID-19 pandemic. One of many lessons has to do with Zoom. We are all familiar with the “oh, sorry, you’re on mute” and the challenges of Zoom fatigue. We’ve also learned that no one wants to listen to anyone other than the very best lecturer talk for an hour straight on Zoom. I am far from one of the very best lecturers and I will spare you even a half hour straight. The gameplan is that I’ll give more of a sprint than a marathon type lecture, then turn it over to the students to respond, then open up to the questions and comments of the larger community. We’ll end with Professor Minow, who will likely pose a question to the students and perhaps one to me, and then close us out.

1.

My story today is framed by three key dates, each separated by twenty years: 1981, 2001, and 2021.

Forty years ago, in 1981, Steven Klinsky graduated from the Harvard Law School. We are fortunate indeed that he did, or, we likely would not be gathered here today. Steven, I hope you enjoy your 40th reunion this year.

Twenty years ago–2001–was my class year at Harvard Law School. I will linger here not to center myself in the story but to ground us in the heady days of what we then called “the Internet boom.” Professor Charlie Nesson taught a class called “The Exploding Internet.” Jonathan Zittrain, fondly known as JZ, taught the early versions of his famous “Internet & Society:

The Technologies and Politics of Control.” I had the great good fortune to be one of the early students at the Berkman Center for Internet & Society alongside a dynamic, passionate, zany crew who had gathered around what Myles Berkman called “the watercooler” for a new era.

The spirit of the times in 2001 was electric and exciting. It was also dominated by a point of view that the Internet was a new thing, a new space–cyberspace–and something that deserved to be treated differently than everything else that had come before. For many, this point of view translated into a “hands off” regulatory environment for the Internet and everything associated with it. There was a name for it: “cyberlibertarianism.” It had some appealing features to be sure: a radical openness and a sense of possibility, the lure of a new kind of more participatory and global politics, and to be sure great riches for those able to harness it.

The United States Congress and those in the regulatory agencies and judiciary at the time more or less went along with this orthodoxy. In this country at least, regulation of the Internet was kept at a bare minimum. No new major, dedicated regulatory agencies or regimes cropped up, except at the margins and when absolutely necessary. The idea was that innovation in this new space was so promising that we should not risk stifling it–not just through excessive regulation, but really through any regulation at all. The emerging e-commerce powerhouses even managed to keep taxes on sales over the Internet at bay for a while.

The effect of this hands-off approach to regulation of the Internet did exactly what it was meant to do. Witness Amazon today. It resulted in an historic boom in businesses dedicated to the Internet, social media, data, hardware, software, hosting, cloud computing, artificial intelligence, machine learning … and on and on. At least off the bat, the vast majority of these companies were founded in the United States. While countries like China have given rise to worthy competitors in many fields, the United States remains the undisputed leader in virtually all aspects of the Internet, digital media, and computing early in this new millennium.

And it made a small number of people, mostly men, mostly highly educated, mostly White and Asian, fabulously wealthy–more so that at any point in history, perhaps with the exception of the 19th century’s Gilded Age.

2.

Warning signs emerged quickly in the ensuing years. Not everyone was enamored of a totally “hands off” policy for the Internet, digital media, and data-heavy technology industries. Scholars from around the world pointed out the dangers and shortcomings of the United States policy regime. European states and the European Commission broke sharply with the United States, though created bridges through safe harbors to allow European citizens to use the US-based services. Authoritarian regimes, including Iran and North Korea, sought to create their own, balkanized version of the Internet. China erected its “great firewall” and an elaborate regulatory regime, long on state involvement and investment, short on protections for individual speech and privacy rights.

Scholars, too, questioned the wisdom of cyberlibertarianism. Harvard Law School and Berkman Center–now Berkman Klein–scholars, too numerous to mention all by name, deserve citation here, for sure, as do many who work elsewhere. JZ, for instance, wrote “The Future of the Internet–and How to Stop It” in 2008. Susan Crawford left a partnership at Wilmer Hale to join the legal academy, calling attention to the “Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age.” Ruth Okediji, Terry Fisher, Lawrence Lessig, and many others pointed out the dangers of an intellectual property regime that favors only some at the expense of the public interest. Yochai Benkler and a team of researchers have exposed the role of political and media elites in spreading dis- and misinformation on social media platforms. Urs Gasser pointed us to the extraordinary array of scholarship and practice outside the United States, in the process creating a network of centers that spans more than 100 institutions and connects with and holds up the distinctive thinking of those on nearly every continent. I could go on but that would take too long–you get the idea.

3.

And now to 2021. In early January, an intrepid group of about 70 Harvard Law School students met over Zoom for an intensive two weeks together to study these issues in the present day. You can probably imagine where this story is headed.

It was only a few days into the course that a mob stormed the United States Capitol, seeking to put a stop to the full and fair election that was to bring Joe Biden and Kamala Harris to the White House. Smack in the middle of our class, a group of largely White people took up arms against our country’s Congressional leadership in an effort to stop the certification of the election of the first African-American and Asian-American woman to one of the highest federal offices. While this insurrection mattered to everyone, it had special meaning in the context of our course.

We threw out the carefully planned syllabus for a few days to talk about what the insurrection meant to us–as people devoted to the study and practice of law and as human beings. These terrifying events, unfolding in front of us, held out the chance to talk about race, power, injustice, and social class among many other things. It was a time of high emotion, disproportionately felt by some members of our class and our society.

More specific to our course, these unsettling events in early January also afforded us the chance to talk in real-time about the decisions policy makers and company owners had to make. For starters: should Twitter take down the Tweets of the then-president that urged on these insurrectionists and ban him, while still in office, from further communications to his millions of followers on the platform? People who are in charge of Twitter, Facebook, and other social media sites had to decide whether to exercise their unprecedented power. Through this Harvard Law School class, we had the chance to debate this very choice–just as it was happening. We heard from a guest to the course, Peter Currie, who served until recently as the lead independent director of Twitter about the nature of this decision facing Jack Dorsey and Mark Zuckerberg and their colleagues.

We studied the lack of access to broadband while school had moved to Zoom–just as our students’ Harvard Law School experience had gone entirely online for this January term. We discussed what it meant for 1 in 5 students in Chicago not to have access to broadband and sufficient computing equipment to participate in school once it had gone all virtual early in the pandemic. We debated the merits of universal broadband access and other means of closing the gaps in access to our digital network in an era in which health information, access to justice, and access to an education hangs in the balance. We had a chance to debate these topics alongside Nicol Turner-Lee of the Brookings Institution, who has made the case for universal broadband access for decades, and with Sal Khan, who aspires to make a world-class education available for free to everyone, anywhere. As an aside, the Klinskys, too, are helping make a high-quality, low-cost college-level education possible using the Internet through one of their other philanthropic efforts.

We had the chance to debate the question with which I started–whether the Internet should be subject to greater regulation than it has been for over twenty years. In the midst of this “Great Deplatforming”–as in fact the social networks did ban the former president–we took up the big picture question of whether the United States-led cyberlibertarian regime is in fact the right one in 2021. We heard our guest Jameel Jaffer, Harvard Law School graduate and director of the Knight Institute, describe the complex interplay between the protections of the First Amendment and the rights of the private platforms to decide who can publish what online. And we heard from Spencer Overton, Harvard Law School graduate and director of the Joint Center, about what technology policy has to do with voting rights for people of color and others from marginalized communities.

Today, in 2021, each of these issues is on the table for consideration by the Biden-Harris Administration, the United States Congress, and the federal judiciary. The best way to regulate social media and the algorithms that increasingly assist humans in making essential decisions, the possible reform of the Communications Decency Act’s Section 230, the call for universal broadband access–each of these issues that we had a chance to debate are live considerations for legal and policy reform here in the United States and around the world.

4.


I did not, during the class, say all that much about my own point of view on these matters. I take the position that students are best served by working out their own ideas to the greatest extent possible in the context of a course without being steered too hard by their teachers.

That said, if they cared to know my personal views–what law scholars might call my “normative priors”–my guess is that the students worked much of it out by following the breadcrumbs I left as I set up the syllabus, chose the readings, invited the guests, and moderated the conversations. I will conclude these remarks by lifting the curtain on these perspectives a bit.

My view is that the 2001-era absence of regulation does not make sense today, if ever it did. The cyberlibertarian approach favored people one would expect it to: individuals who already had power and capital, a group overwhelmingly White and male (and in this case, Asian), the venture capitalists and technologists, the big firm lawyers and the Wall Street bankers with a technological aptitude and bent. The system has been much less good for just about everyone else. We need a regulatory regime for technology that puts the public interest first, with equity and inclusion as a design principle, not an afterthought.

Of the current debates that we took up in the course, I believe that access to broadband should be treated just as we treat electricity or the telephone system. It is far past the time that we can think of this system as anything other than an essential utility. The problems of the last mile in rural areas or the yawning gaps in cities like Chicago, where I live, need to be solved in a hurry, after years of foot-dragging.

I agree with those who believe that the social media companies had every right–perhaps an obligation–to deplatform the former president and others who were spreading misinformation about a properly conducted election and much else besides. I do not think the First Amendment does or should stand in their way. I share the worries, though, about the power we are leaving in the hands of a very small group of billionaires, who happen to be all men and all White. And I worry a lot about the fate of our country’s journalism and media sector in an era dominated by gigantic and ever-more-powerful social media companies. That is a lecture for another day.

Perhaps most controversially, I agree it is time that we amend Section 230 of the
Communications Decency Act. This key provision of United States Internet law is considered sacrosanct by many in the technology field–and is the cornerstone of the cyberlibertarian philosophy. This provision, written into law in 1996 as part of a massive overhaul of the telecommunications regime, was meant to promote Good Samaritanship by those running the emerging Internet platforms. It has a funny dynamic to it: on the one hand, it ensures that the platform providers are not held liable for the bad acts of their users. On the other, it is meant to give them protection if they choose to act as Good Samaritans, to offer a helping hand.

It is true that this extremely wide and deep safe harbor has led to the growth of Internet companies, to robust competition, and to much innovation. It has also led to many bad acts and to many companies turning the other way when law enforcement or aggrieved parties come calling. In the name of preserving their safe harbor, many companies have done far too little to protect those who have been harmed.

It is time, I believe, that the law should be amended to extend meaningful protection to all, not just some. Urs Gasser and I made such an argument when we wrote Born Digital, a book which came out in 2008, in the interests of child protection. I agree too with the arguments put forward by Danielle Citron (a 2019 MacArthur fellow, incidentally) and Mary Anne Franks about individuals who are too often harmed by this absence of a regulatory regime–mostly women and people of color. I even might be persuaded to agree with a brilliant legal scholar, who happens to be here today, who recently suggested in a seminar I attended that Section 230 should not be amended but needed to be scrapped altogether, and for us to start again. We’ll see.

I believe it is time to create new digital institutions in the public interest. Ethan Zuckerman has called this digital public infrastructure. In EthanZ’s view, building explicitly from the work of Newton Minow from the 1960s to the present day, we should treat digital infrastructure as public goods, not purely as profit-maximizing enterprises. I agree. I think of the Digital Public Library of America–creating a public option when it comes to access to digital materials and eBooks–or Wikipedia as extant examples, with much more to be built and built out. Imagine a cloud computing system that is not held in private hands, a social network that truly protects personal information, digital media platforms that transform news and information the way NPR and PBS have transformed the landscape for radio and television, and so forth.

It is time for us to reimagine the knowledge and information needs in a democracy, before it is too late, and build the institutions to meet those needs. Across education, journalism, libraries–we should imagine and build new digital infrastructure for the public good. This is the progress and leadership I’d love to see in our field.

Most important, I believe it is time for a new, dynamic, more diverse, inspired group of young people to join the field of technology and the public interest. I have every confidence that these newcomers will help to build the new, digital institutions that will serve the many, not just the few. I am excited to see what they will do to design, build, regulate, and remake structures and a system that badly needs it–in the interest of a more just and inclusive economy and our very democracy. Thank you.

5.

Now let’s turn to the best part of this “lecture,” a chance to hear from three students who, I hope, may be among those who decide to take up these issues in their professional lives one way or another. (No pressure!)

Each of these students made their mark in our star-crossed, impossibly timed course this January. For those not currently in the Harvard Law School community, this course was part of the January Experiential Term. Over Zoom, it is hard to make something truly “experiential,” so we improvised–as we’ve improvised in nearly every aspect of life this past year. We talked about matters of doctrine and policy as a throughline to the course, but it was really about what it means to become a lawyer–the kinds of things our students can go on to think about and do after law school. In addition to bringing in guests from inside and outside the legal profession, we required students to write a self-reflection on whether their application essay to HLS still made sense to them, required them to solve a technology policy problem in a team, and do all of this online.

To help us understand this story from the student perspective, I am pleased to introduce three exceptional people: Isabella Berkley, Madeleine Matsui, and Jess Valenzuela Ramirez. I’ve asked them to comment as they see fit on my lecture, on the substance of the course, and on their experience as Zoom-only 1Ls this year. I’ve invited them to be candid, to share whatever they feel is important to know, even if it may contradict what I’ve said or throw shade on the course or the experience they’ve had so far in law school. I’m eager to hear what they have to say, no matter what, about this intersection of technology in the public interest and the experience of learning the law entirely via the technology of Zoom.

Isabella, please start us off.

2 thoughts on “2021 Klinsky Lecture, Harvard Law School

  1. I read your speech with interest. The issue you address is a very important one: how should internet platforms be regulated to assure that the information which is distributed on them properly serves the public interest? I would agree with you that regulation is necessary. My starting point would be to apply to the internet platforms the same standards that apply to publishers under traditional libel principles. Of course, this would put quite a burden on them due to their breadth and reach, but that is what they profit from so that is what they should be held responsible for.

    As an aside, I think the constant attention to the the “white and Asian” beneficiaries and the other equity and inclusion stuff is a distraction from the big issues which apply to our society generally. I don’t disagree with some of your points in that regard, but the constant references tend to drown out the bigger points and turn off me and probably others.

    Sent from my iPhone

    • Thank you, Steve–I always appreciate your critiques. For sure, I agree that the Internet platforms should no longer get such special status. They plainly have had the benefit of protection via the law to date in ways that have benefitted them at the expense of others–curiously, in a way that even a true libertarian might see as fraught.

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