Katie Salen, ed., "The Ecology of Games: Connecting Youth, Games, and Learning"

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The first book that I read in the series of MacArthur/MIT Press’s Digital Media and Learning series was “The Ecology of Games: Connecting Youth, Games, and Learning,” edited by game designer and educator Katie Salen (open access version here). As with the other books in the series, it’s a very important contribution to the scholarly literature of a nascent field. (I’ve come back to Salen’s work just as Urs Gasser and I are turning in the final, final version of our forthcoming book, Born Digital.) “The Ecology of Games” is an excellent primer on where innovation is happening at the intersection between games and learning and where future avenues for research offer promise.

The first essay, Salen’s “Toward an Ecology of Gaming,” sets the frame for the collection. She recounts, helpfully, those things that “we” know already: “… that play is iterative as is good learning, and that gaming is a practice rooted in reflection in action, which is also a quality of good learning. We know games are more than contexts for the production of fun and deliver just-in-time learning, the development of specialist language, and experimentation with identity and point of view. We know games are procedurally based systems embedded within robust communities of practice. We know that video games and gaming have done much to shape our understanding and misunderstanding of the post-Nintendo generation, and hold a key place in the minds of those looking to empower educators and learners. Beyond their value as entertainment media, games and game modification are currently key entry points for many young people into productive literacies, social communities, and digitally rich identities.” (pp. 14 – 15) She ends her chapter with five unanswered questions, each worth reflecting and working on. (p. 15)

James Paul Gee‘s “Learning and Games” gives an overview of what “good game design” can “teach us about good learning” and vice-versa (p. 21). He offers these insights through what he calls the “situated learning matrix.” (pp. 24 – 31) The most illuminating part of his essay for me was the discussion of the ways in which young people form cross-functional teams within gaming environments — and his view of the excellent training opportunities these contexts could hold in terms of training them for workplace experiences. (p. 33)

In “In-Game, In-Room, In-World: Reconnecting Video Game Play to the Rest of Kids’ Lives,” three authors (Reed Stevens, Tom Satwicz, and Laurie McCarthy) take up a great topic: “whether playing these games affects kids’ lives when the machine is off.” (p. 41) The key insight for me was the notion of identity: “… young people are indeed forming identities in relation to video games. The idea that they can do things in the game that they cannot do in the real world is only part of the story; the other half is that they hold actions that they control in-game in regular comparative contact with the consequences, and morality, of those actions in the real world. Actions in games, then, are a resource for building identities in the real world, occurring through a reflective conversation that takes place in-room.” (p. 62)

“E is or Everyone: The Case for Inclusive Game Design,” by Amit Pitaru, followed a different structure than most other essays in the series. It’s told as a story about the researcher’s time with students at the Henry Viscardi School in Albertson, NY, a “remarkable school” that “educates approximately 200 pre-K to twenty-one-year-old students with a variety of physical disabilities and medical needs.” (p. 68)

Through this narrative, Pitaru offers insights on many levels. The essence of the argument is that a lack of play among children poses dangers, many of which can be avoided through digital games when set in the proper context. Pitaru claims further that digital games “provide a viable complementary activity to existing mediated forms of play” for children with disabilities.” (p. 85) I wondered, at the end, how many educators would agree with Pitaru, and where other experimentation is happening.

Mimi Ito, as usual, offers an extraordinarily helpful essay. If you read any single essay from the DML series, read this one: “Education vs. Entertainment: A Cultural History of Children’s Software.” The topic is genres of participation. She tells a story about “commercial children’s software, designed to be both fun and enriching, lies at the boundary zone between the resilient structures of education and entertainment that structure contemporary childhoods in the United States.” (p. 89) Ito gives an instructive history of the development of games for kids along with a genuinely useful analytical frame and a clear conclusion. She writes, “If I were to place my bet on a genre of gaming that has the potential to transform the systemic conditions of childhood learning, I would pick the construction genre.” (p. 115) Here’s to tinkering (and to Mimi’s great work).

In “The Rhetoric of Video Games,” Ian Bogost makes an intriguing argument in favor of “procedural rhetoric” via games. In his view, this approach could enable the questioning of the values behind certain professional practices instead of their blind assumption. (p. 130) I’m not sure I completely got his argument, but it was useful and provocative to puzzle it through.

Anna Everett, the editor of another volume in the series, and S. Craig Watkins offer a counterpoint to much of the rest of the book, exploring ways in which games and other immersive environments are not always socially productive. (p. 143) It’s a helpful reminder and a useful link to the DML series book on race.

The most interesting data that is presented in the book comes from the private sector: Cory Ondrejka, then of Linden Labs/Second Life and the Annenberg School (now headed to an exciting new job…), points out some usage statistics about SL in “Education Unleashed: Participatory Culture, Education, and Innovation in Second Life.” The most striking — and hopeful — figure was his note that 67% (sixty-seven percent) of respondents to a survey of Teen Second Life users “had written at least one program using the scripting language.” (p. 239) Of course it is a tiny sample (384) of self-selected young people, but the tinkering spirit that Mimi Ito highlights in her essay is alive and well in the people that Ondrejka heard from.

Barry Joseph, director of Global Kids, Inc., wrote the concluding essay on “treating games as a form of youth media within a youth development framework.” His notion of game design as an element of making meaning through the creation of structures is a great addition to the thinking on semiotic democracy that I think is so crucial in this literature. His theory is well-grounded in experiences he’s had with Global Kids, working with teachers and students and corporate supporters, which gives the piece an important series of links to reality that is often missing from our scholarly literature — without giving up the theoretical side.

Salen, Ito, Ondrejka, and Joseph’s essays, among others in the book, led me to a conclusion out of the book: in some contexts, great forms of learning may come for some students using well-designed games, primarily of the construction genre. There’s not yet sufficient evidence here, in my view, to turn over our entire educational system to games and virtual worlds, but there’s plenty to learn from what some young people are doing in these environments during school time and otherwise.

Daniel Solove's The Future of Reputation

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The first book I’ve read in full on my Amazon Kindle is Daniel Solove‘s “The Future of Reputation: Gossip, Rumor, and Privacy on the Internet.” It’s a book I’ve been meaning to read since it came out; it did not disappoint. I was glad to have the joint experience of reading a first full book on the Kindle and of enjoying Solove’s fine work in the process.

Before I picked up “The Future of Reputation,” Solove had already played an important part in my own thinking about online privacy. The term that he coined in a previous book, “digital dossiers,” is a key building-block for the chapter of the same topic in Born Digital, which Urs Gasser and I have just finished (coming out in August). Solove advanced the ball in a helpful way, building on and refining previous scholarship of his own and that of Jonathan Zittrain, Paul Schwartz, Simson Garfinkel and others.

This book has the great virtue of being accessible to a reader who is not a privacy expert as well as being informative to those who know a good bit about it to begin with. Solove repeats a lot of lines that one has heard many times before (for instance, at the outset of Chapter 5, Scott McNealy’s line: “You already have zero privacy. Get over it.”), but also introduces some new ideas to the mix. It’s good on the theory, but it also offers practical policy guidance. He also poses good questions that could help anyone who wants to think more seriously about how to manage their reputation in a digital age.

One other thing I appreciated in particular: Solove is clearly a voracious reader and does an excellent job of situating his own thoughts in within the works and thought of others (variously Henry James and Beecher; Burr and Hamilton; Warren and Brandeis; Brin, Johnson & Post, and Gates) and in historical context, which I much enjoyed.

As for the Kindle itself: it’s fine. I don’t love it, but I also have found myself bringing it on planes with me lately, loaded up with a bunch of books that I’ve been meaning to read. So far, the battery life has been poor (might be my poor re-charging practices), so that the technology of the Kindle is sometimes less good than the technology of the classic book (which cannot run out of batteries in the middle of a long-haul flight, as my Kindle always seems to). The eInk is soft on the eyes; no problem there. The next and previous page functionality is fine, and the bookmark works pretty well. And FWIW, I’ve now got Mark Bauerlein’s “The Dumbest Generation: How the Digital Age Stupefies Young Americans and Jeopardizes Our Future (Or, Don’t Trust Anyone Under 30)” on there, which is up next for a review — as its premise cuts against the grain of Born Digital.  One advantage of the Kindle is cost, once you have device: the Solove and Bauerlein books cost a mere $9.99 each.

Leaked Cisco Document: Chinese Censorship among "Opportunities"

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As WIRED is reporting, a leaked Cisco presentation (online here) makes clear that, in 2002, Cisco team members saw censorship in China as an opportunity to sell equipment to the state. The presentation, in slide 57, cites what appears to be a Chinese official saying that one of the goals of Operation Golden Shield (what we call the Great Firewall of China) is to “Combat ‘Falun Gong’ evil religion and other hostiles.”

Cisco has repeatedly said that it has nothing to account for with respect to its sales to China and other places that practice Internet filtering and surveillance. This leaked document (presuming it is not a forgery; Cisco does not seem to be disclaiming it) puts that argument to rest, once and for all.

Cisco has not been involved in the public effort by Microsoft, Yahoo!, Google and others to come up with a code of conduct for dealing with situations like these. Cisco should be involved. The fact that it is not involved, and that their involvement in this matter has been nothing but stonewalling, is inexcusable.

I have not been a supporter of passing a law like the Global Online Freedom Act in its current or historic form, because I think it would have too many unintended consequences.  But if Cisco persists in stonewalling on this topic, I think it’s necessary for the government to jump in at some point with respect to sales by US technology firms to foreign governments that practice Internet censorship and surveillance in the absence of a rule of law.

And Cisco should not be hiding behind the hollow argument that their routers and switches can be used both for good purposes and for ill when it is now clear that 1) many states around the world are using this type of equipment to violate human rights and 2) that they have not just made sales to such states, but in fact targeted these “opportunities” that derive from online censorship.

Testimony on Internet Filtering and Surveillance

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Mister Chairman, distinguished members of the Committee:

I would like to offer my deep appreciation for the Committee’s interest in this important matter. Congressional engagement is an important factor in deepening understanding of the nexus between global Internet freedom and corporate responsibility, and an essential element for ensuring that the Internet continues on its path towards becoming an ever-greater force for democratic participation and human rights advancement worldwide.

My name is John Palfrey. I teach Internet law at Harvard Law School. My primary research interest is in examining issues related to the Internet and democracy. I am also Executive Director of the Berkman Center for Internet and Society. Of relevance to this hearing, I am a Principal Investigator of the OpenNet Initiative (ONI), a project based at the University of Toronto, the University of Cambridge, the Oxford Internet Institute, and Harvard Law School, that has been conducting research and analysis of Internet censorship, filtering, and surveillance practices worldwide. I submit this testimony along with my colleague, Colin Maclay, Managing Director of the Berkman Center. Together with other great colleagues at Berkman, we have spent over two years on a multi-stakeholder effort—involving companies, non-profits, socially responsible investors, and other academics—to develop principles and associated implementation measures for technology companies seeking to protect and advance privacy and free expression worldwide.

The strides made through this initiative—engaging a range of parties, deepening understanding of the complexity of the issues for each stakeholder, and working towards a viable solution—have been encouraging. I would urge you to support the recommendations generated by this process, in lieu of strong legislation at this time. As this testimony will demonstrate, due to the dynamic nature of the ICT sector and the complexities of the existing regulatory environment, legal regimes cannot adequately address the dilemmas posed by the rise of global filtering, censorship, and surveillance practices worldwide, and are unlikely to be capable of doing so in the near term. Furthermore, the proposals currently being considered could be harmful in the long run, by forcing organizations out of foreign countries altogether or by requiring them to break local laws. At this moment of dynamic change, it would be premature to act now with blunt legislation. Rather, there are several activities which the US government could support and contribute to, such as constructive policy engagement, collaborative learning, multi-stakeholder input and commitment, further technological innovation, and user empowerment, that could have immediate impact not only on our understanding of the landscape, but on our ability to positively contribute to protecting the human rights that are at risk. Furthermore, with practical implementation and global acceptance, the principles that arise from this multi-stakeholder initiative may merit codification by Congress in the relatively near future.

Current State of Affairs and Trends

Since I last testified in February 2006 before the House Subcommittee on Africa, Global Human Rights, and International Operations and the Subcommittee on Asia and the Pacific, and the Congressional Human Rights Caucus, the prevalence of Internet censorship has continued to grow in scope and in depth. Our research through the ONI has identified over two-dozen states actively filtering Internet content, up from a handful five years ago. As access to information and communications technologies (ICTs) increases further, this trend seems likely to continue.

Technological innovations have fueled the expansion of Internet filtering and censorship, enhancing their sophistication and consequently creating troubling implications for human rights. Recent research suggests that several countries are investing in technologies that increase their capacity to target specific web pages, information sources, and applications. Surveillance technologies are likewise advancing, offering states expanded opportunities to eavesdrop on the communications of their citizens. Meanwhile, systems for storing and analyzing data continue to decline in cost, which allow governments to extract new information from existing data originally collected for other purposes.

A related and significant development is the growth of social media (including video and photo-sharing sites such as YouTube and Flickr among others), which significantly amplifies—and further complicates— unresolved tensions concerning content control. As these platforms are combined with other emerging technologies for content analysis, new censorship and privacy concerns will emerge.

Conflicts between differing expectations of privacy, data retention laws and practices, in addition to divergent approaches to traditional telecommunications and Internet communications regulation, give rise to increasingly hard problems. For example, Internet filtering and surveillance involves hardware providers, software providers, and service providers, and US firms are not the only companies offering these products and services. These factors remind us that issues of Internet freedom are part of a much larger policy and technology ecosystem, and require care accordingly.

The Corporate Dilemma

With over a billion people on the Net and about half the world with a mobile phone, more people than ever are using digital technologies and integrating them deeply into their lives and livelihoods. Governments are ever more cognizant of the double-edged sword that technology represents— as both a tool to foster economic growth and competitiveness, and as a potential threat to government sovereignty and power. As governments seek to control information and online activities, private actors, including ICT-related firms, are increasingly called upon to assist in carrying out those efforts.

In our recent book with our ONI partners, Access Denied: The Practice and Policy of Global Internet Filtering, we proposed a taxonomy that describes various types of companies and their involvement in these practices. We identified ICT firms as hardware providers, software providers, online service providers, online publishers, telecommunications providers, and other content providers. Describing them in terms of function, we characterized their activities as direct sales to governments of software and services for filtering online content and for surveillance; direct sales to governments of dual-use technology similar purposes; and offering a service that is subject to censorship, that censors publications, or requires personal information that could be subject to surveillance. Considering these companies functionally is a useful way to examine their activities.

In past hearings, proposed legislation, and the public eye, perhaps the greatest focus has been placed on the activities of the most visible and widely known companies—those in the third category, offering online services. These companies, including Google, Microsoft, and Yahoo!, have shown sustained interest in resisting government demands to assist with censorship and surveillance, and a desire to engage proactively in developing strategies to address the human rights challenges they face. It is important to note that for each of these companies, a core business goal is to provide access to high-quality and secure information and communications services, and that their incentives are thus better aligned with the interests of their users than those of repressive governments.

Within this landscape, it is important not to neglect the companies selling software and hardware directly to governments, as they too form an important layer of the censorship and surveillance ecosystem, and have thus far been relatively silent on these issues. In addition, there are a host of other US businesses that use the Internet to transmit data across borders —from banking and other financial services, technology licensing, news media, and hotel services— each of which may come into contact with government policies on free expression and privacy as they operate in different countries and across jurisdictions. In this testimony, we focus primarily on those who provide online services, because that is where we can lend the greatest insight, precisely because these companies have been willing to jointly explore the obstacles they face.

Conflicting law and dual purpose technologies

Mapping digital technologies onto the governance gaps created by globalization—and identified in the fine work of John Ruggie, our colleague at the Harvard Kennedy School and the UN Special Representative on Business and Human Rights— creates multiple conflicting legal and normative regimes for companies to navigate. Governments may regard companies providing online services to their citizens as similar to their own national media and telecommunications companies—and therefore subject to the same expectations—regardless of the law of the company’s country, its market orientation, or its physical presence in the country. They may expect these companies to adhere to laws and social norms about content parameters (ranging from intellectual property to pornography and national security), and to provide personal information about their users when requested for law enforcement purposes. Some governments have also shown a lack of understanding of how the Internet works—and what is realistically under the control of a company, and what, such as user-generated content, is not.

Companies face a huge challenge as they seek to separate legitimate state requests from those that would require them to abridge human rights. For example, they must discern the difference between claims related to ongoing criminal cases, including kidnapping, terrorist threats, or child pornography, and those that seek to limit fundamental rights by stopping the flow of relevant public information or staunching peaceful political opposition. Thus, a priority must be the creation of effective internal systems, to enable thoughtful assessments of these types of requests, and to ensure that their responses are nuanced and appropriate, protective of the rights of specific citizens in addition to the rights to expression and privacy.

Once a company comes to a decision regarding the legitimacy of the request, it must also consider the consequences of complying or not complying. Acquiescence to illegitimate requests may cause them to jeopardize their social and economic values by abridging core human rights. They may also incur risks such as losses in user confidence, brand identity, profit, and employee satisfaction, as well as the threat of legal (including shareholder) action. However, choosing to push back or initiate legal action can also generate risks. In choosing to resist law enforcement demands, companies may endanger operating licenses and institutional relationships, and more importantly, the potential safety of their employees on the ground. In the case of ill-chosen resistance, the risk can be broader, extending to public safety and beyond.

Public Awareness, Pressure, and Understanding

Public awareness of these issues continues to grow. High profile violations of the rights to expression and privacy, shareholder actions, human rights campaigns, academic analysis, and Congressional interest have kept the pressure on. Companies are increasingly aware that the challenges they face are real and lasting and require a concerted and sustained effort in order to confront them effectively. The value of this rising awareness, however, will be greatest if accompanied by a deep understanding of the issues, so as to create robust and lasting solutions.

The cases that attract public attention are often extreme examples of the challenges ICT companies face. For example, China’s censorship, manipulation, and detention practices are a real and immediate danger. However, associated media coverage does not span the range of issues but instead directs public attention to the problems that are the most straightforward to address. High profile cases are deeply unsettling at best, but they are closer to the sharp and menacing tip of the iceberg rising above the waterline than they are to the substantial and complicated dangers lying below it. The threat to digital expression and privacy is global and extends well beyond what is commonly reported, and the practices of any one state should not dominate our understanding and approach to solutions. We must opt to address the complexities of these issues that lie beyond the public eye, and bring them to light with greater transparency and accurate data. From that understanding, we have a much stronger platform upon which to develop solutions that engage the wide range of stakeholders necessary to affect change.

Constructive Engagement

Despite the substantial human rights challenges that the ICT sector faces, the continued presence and constructive engagement of technology companies in these markets is critical. The tools and services offered by ICT companies bring social, economic, and political value through increased information and communication and through improved business and cross-cultural connections. They also hold great promise for international development. Furthermore, American businesses can influence positively the practice of government and local businesses, bring greater transparency to interactions that are often opaque, and provide a continued platform for informed government-to-government and government-to-individual exchanges. A collaborative approach in which stakeholders create principles for operating in such regimes will, over time, generate opportunities for mutual learning, respectful exchange of views, and more effective solutions.

Conversely, the disengagement of these stakeholders from foreign markets through legislative would likely not improve the situation. Competitors to the US companies are on the rise, and placing limitations on the engagement of US firms in these markets runs a very real risk of simply handing them to other companies who may be less open to constructive influence and may have a lower commitment to human rights. Thus, rather than focusing on limiting opportunities for US corporate activities, it is important to address challenges to privacy and free expression so as to have a positive and sustained global impact on the behavior of companies based both in the US and around the world, as well as having a positive impact on the regulatory environment in which these companies operate overseas.

In an industry in which rapid change, innovation and evolution dictate that these dilemmas will remain a moving target, and subject to shifting technologies, business models, regulations and politics, the creation of an adaptive platform is essential. These multi-faceted scenarios suggest the wisdom of establishing a collaborative forum for multiple stakeholders— including government, nonprofit, academics, and business— to come together for learning, coordinated action, increased transparency, innovation, and enhanced channels of communication, to promote a nuanced understanding that will benefit all stakeholders. This process has been started, and would benefit from broad support.

Recommendations on a Starting Point

Over the past two years, in partnership with the Center for Democracy and Technology and Business for Social Responsibility, in addition to other academic institutions, human rights groups, socially-responsible investors, and leading ICT firms, the Berkman Center has been involved in a collaborative initiative designed to identify solutions to the problems related to freedom of expression and privacy online.

As the Committee recognizes, these matters are complex. After two years of deliberation and study, we understand more clearly the nuances and complexities of the issues. However, we are still far from defining solutions to these growing challenges. Furthermore, we believe that legislative action now that would prescribe what US companies can and can not do overseas would be premature and potentially damaging to the long-term objective of promoting greater freedom online.

This process represents a promising way forward, one that we believe will ultimately inform legislation and serve as a productive means of interaction with government. It calls on companies to develop a dynamic principles-based approach to ensuring that they operate ethically, consistently, and strategically (for human rights advancement) in these charged contexts, with an emphasis on strong internal rights-focused processes that are supported and informed by group collaboration. While the Principles, Implementation Guidelines and governance structure are as yet not finalized, we expect that agreement and initiation of collaboration will take place in fall 2008.

It is important that any legislation not be tailored so broadly as to attempt to confront every issue and actor with one set of rules, but neither should the law address one set of issues and ignore the others. A better approach is to promote the learning and deeper understanding that would lay the foundation for future legislation, ideally in conjunction with the aforementioned Principles process.

If the Principles that are currently being developed in the context of the multi-stakeholder process are implemented, grow in stability, and gain acceptance, they will be a good basis for future legislation to codify and bolster the norms that emerge.

We offer the following for your consideration, many of which have emerged from the Principles initiative:

1. Support Research, Learning and Awareness

Contribute knowledge and resources to improve understanding of online censorship, filtering, and surveillance practices. Facilitate the preparation of annual human rights reports that include assessments of the risks to freedom of expression and privacy with respect to ICT. Fund research into relevant legal regimes, events, and trends in Internet freedom, and make the results publicly accessible.

2. Create Alternative Paths

Fund and promote the development and dissemination of innovative technologies that promote Internet freedom. Contribute to education and awareness regarding online security.

Explore options for structured cooperation with foreign law enforcement by creating or adhering to a recognized, standardized and streamlined process for legitimate requests for information from US companies, such that companies have guidance on the appropriate course of action, and pressure on companies to physically locate data in certain jurisdictions is mitigated.

3. Build Partnerships and Enhance Coordination

Create regular opportunities for open exchange between the ICT sector, human rights organizations, academic researchers, and the US government. Consistently and strategically raise concerns about surveillance and censorship in appropriate international bi- and multi-lateral fora.

4. Create Incentives

The current multi-stakeholder initiative is a promising near-term approach to understanding and addressing the challenges faced by US companies providing services internationally via the Internet. The US government can best assist this effort by providing incentives to cooperate with this multi-stakeholder effort, and should avoid legal restrictions or penalties that could discourage cooperation.

Promote the compilation and sharing of information. Facilitate the sharing of information by companies on threats to free expression and privacy. Assist companies in tracking threats to free expression and privacy.

Recognize and reward legal, practical, organizational and technical progress on these issues by countries, companies and other innovators.

5. Lead the Way

The US government can help to facilitate change in policy regimes worldwide by closely examining our own regime and then sharing resources with other countries willing to follow our lead.

Identify and address inconsistencies in US policy including privacy, data retention, surveillance, anonymity and speech, recognizing that a holistic US policy framework informs related approaches in other nations.

Assist countries in clarifying and improving their policy regimes with respect to ICT generally, and privacy and expression specifically.

6. Foster Transparency

In order to address fully the challenges in this sphere, we should encourage companies to be more transparent about the impact of their policies and practices on rights of privacy and freedom of expression. There are a number of ways that these companies can make their actions more transparent to users, more protective of civil liberties, and more accountable to all of us.

Encourage US companies to inform users about content restrictions or threats to privacy in a clear and timely manner, recognizing legal restrictions.

7. Codify the Principles

To extent that the multi-stakeholder Principles initiative leads to a workable solution, the US Congress should consider legislating this approach over time, much as Congress did with regard to the Sullivan Principles.

Conclusion

The Internet has the capacity to foster active and participatory democracies around the world, and to advance and protect the human rights of expression and privacy. The rise of filtering, censorship, and surveillance practices worldwide has profound implications for the global development, proliferation and health of democratic values—such as privacy, access to information, participation, freedom of expression, and other human rights. Because the Internet is a truly global network that shows no sign of slowing down, the ramifications of restrictions within the online space should be of paramount concern to US policy-makers, and should inform their relationships and negotiations with governments worldwide. We support Congress’ laudable effort to improve understanding of these important and timely issues.

There are significant challenges and complex ethical dilemmas across this landscape for corporations, governments, and users. At this relatively early stage of our understanding, any legislative approach should support adaptive, realistic, and engagement-oriented efforts by companies operating in these contexts. We must buttress this legislative approach with increased knowledge, communication, study, and coordination to help turn back threats to human rights. Ultimately, while the measures we and others have offered will hopefully increase Internet freedom, the only truly reliable way to reduce excessive filtering and inappropriate surveillance is via a change of policy within the countries where this occurs.

Written testimony of John Palfrey with Colin Maclay, May 20, 2008, to the US Congress.

Digital Natives Myth-Busting Session at Berkman@10

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Our session on Digital Natives as part of the unconference day 2 is focused on Myth-Busting. We put up on the conference wiki a bunch of myths online that we’ve been working to bust (or to affirm). Our mode is to put these myths to the attendees, see which ones they would like to discuss, and dig in where the group is most interested.

My co-author (of a forthcoming book, Born Digital) and friend Urs Gasser is opening up with a framework for study of the Digital Natives issues we’re focused on. His steps include a descriptive, analytical, evaluative, and prescriptive.

Of the eight myths we posted, the one that got the most votes and comments from the group was about wasting time online. Precisely, it was this one that got people going: “Digital Natives are wasting time online. –> Young people are learning, gaining skills, and becoming collaborative, critical and informed members of society through their online and digital engagements.”

It was fortuitous to be in Langdell North classroom at HLS for this discussion. It was one of the rooms renovated in the late 1990s by the HLS administration with Ethernet jacks, only for the faculty to decide promptly to turn off those Ethernet jacks. It is one of the great puzzles of the Digital Natives topic: once we get access to the Internet and related technologies into the room, what then should we have students do with those technologies?

In my own teaching, I think I under-leverage the technologies in the room. Students are, almost 100%, online on a laptop in the classes that I’m teaching here.  I certainly haven’t figured it out. I’m not sure if anyone I know, with the exception of Jonathan Zittrain, has figured that out yet.  I don’t accept that young people are just wasting time online, but I also don’t think that teachers are doing anywhere near enough to help them to use that online time wisely, during class time or otherwise.

A Kick-Off for The Publius Project

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This morning, at our 10th Anniversary celebration, we are talking about the future of politics and the Net. The notes I’ve prepared with my colleagues in advance of the session are here, on the conference wiki; have at them!) Before we start the real-space conversation, a quick pause to introduce a new project, called Publius.  (This post is more or less a cross-posting of my Preface to the Publius project.)

* * *

We live in extraordinary times. For one billion of the six billion people on the planet, our lives are mediated by digital technologies. The way we use these technologies has a huge impact on many aspects of life in wired cultures around the world: how we do business, how we connect with one another, how we relate to institutions, how we participate in civic life, and so forth. Even in places where the Net barely reaches – places like Burma, North Korea, and Cuba – its influence is beginning to be felt. While individuals and groups have more autonomy and power in the networked age, so too do states and international bodies have new and different capacities to govern.

We use digital technologies in ways that are both constructive and disruptive. These technologies make it possible, for instance, for any citizen to speak her mind in a networked public sphere and to be heard by other people just about anywhere else in the world. While this freedom represents a revolution for human rights and democracy, it also makes the harm that her speech can cause much greater. Her speech might be defamatory; or it might be obscene, perhaps unfit for children to hear; or it might be disrespectful to the sovereign of a state far away from where she published it. That sovereign might want to keep anyone in his state from hearing her.

National and international disputes arise from everyday interactions online, like publishing text and video. Within states, people argue about how much to regulate interactions that are mediated by the Internet, like discussions in chat rooms, commercial transactions, and gambling. States are beginning to attack one another in the newly militarized zone of cyberspace. States fight over control of intellectual property that flows across national boundaries. Leaders get very exercised about the way that web site naming conventions and other technical protocols work and about the power of the institutions that manage them.

While the interactions between states and international bodies are paramount, their power knows limits online; their influence must occur alongside that of the companies, markets, and users that comprise the Net. The code and services offered by companies and the coordination provided by markets, have an enormous impact on how online life is governed—they create rules about what we can and cannot do. Those of us who spend a lot of time on the Net – netizens – ourselves are establishing norms that further govern our collective experience online. Groups form and disband quickly. Those that stick around can amass great capacity to include, empower, and exclude. The ability to govern activities online is not the exclusive province of the state, and the line between public and private action is getting blurrier, not clearer, as more of life moves into the networked public sphere.

The Net is in the midst of a constitutional moment that’s unusual, if not unique in world history. Our argument is that we are together participating in a series of constitutional moments, taking place all the time, all around the world. And unlike previous constitutional moments, such as the late eighteenth century in the United States, many more people have a means of shaping the outcome.

The Publius Project — launched as part of Berkman@10 — intends to draw out and record for posterity the diverse voices of those participating in these rolling constitutional moments. We are publishing the arguments of those who are exploring these many processes of decision-making and governance online. Our goal is to illuminate our collective experience and to provide a forum for strong points of view to emerge. We want to shine light on the nuances at the margins of decision-making online. We mean to encourage the Internet community to provoke one another, to inform ourselves, and to listen to others with different experiences. In the process, it’s our goal to help empower individuals, groups, companies, states, and international bodies to work together for the common good, especially as these constitutional moments come in wave after wave, breaking all around us.

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As a starting point, one might begin with David Weinberger’s argument in favor of Tacit Governance. Then swing over to some responses, from Esther Dyson, David Johnson, and Kevin Werbach.

Congratulations to Phil Malone and Wendy Jacobs

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The Harvard Law School just announced the promotion of Phil Malone (in cyberlaw and intellectual property) and Wendy Jacobs (in environmental law) to the full-time faculty as clinical professors. Phil Malone has been the director of the Berkman Center clinical program for the past few years, first with Jeff Cunard and Bruce Keller as co-directors and recently as the sole director. He’s an extraordinary lawyer and teacher. It is our great good fortune at the Berkman Center that Phil has accepted HLS’s offer to join the faculty as a Clinical Professor of Law. Hooray!

Myth-Busting: Kids and Information Technology

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We’re planning our session on Digital Natives for the Berkman@10 conference later this week.  The idea is to hold a “myth-busting” session.  A first pass of myths are up on the conference wiki.  The idea is to discuss some of the common misconceptions about kids and technology that we explore in our forthcoming book, Born Digital.  Please suggest others, and looking forward to seeing many great friends later this week.  (Many thanks to Miriam Simun for her leadership on this and other matters.)

Duke and Open Access

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It’s been noted that Duke Law School has a long history of leadership in this area, beginning with an online repository for its faculty’s scholarship (dating from 2005) and its journals made accessible online (starting back in 1997!), both of which well predate HLS’s vote on an opt-out Open Access policy last week. Prof. Richard Danner, the school’s law librarian, has a fine article on the open access topic. (Thanks to Paul Lomio at Stanford for the note.) Prof. Jessica Litman, of Michigan, also has an article on this topic, which I found extremely useful when preparing to discuss Open Access with the HLS faculty.

HLS Goes Open Access, Unanimously

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I’m just delighted that the Harvard Law School faculty has voted unanimously to adopt an open access policy. This policy is consistent with the policy adopted by the Harvard Faculty of Arts and Sciences earlier this year.

Here is what we approved:

“The Faculty of the Harvard Law School is committed to disseminating the fruits of its research and scholarship as widely as possible. In keeping with that commitment, the Faculty adopts the following policy: Each Faculty member grants to the President and Fellows of Harvard College permission to make available his or her scholarly articles and to exercise the copyright in those articles. More specifically, each Faculty member grants to the President and Fellows a nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit. The policy will apply to all scholarly articles authored or co-authored while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy. The Dean or the Dean’s designate will waive application of the policy to a particular article upon written request by a Faculty member explaining the need.

Each Faculty member will provide an electronic copy of the final version of the article at no charge to the appropriate representative of the Provost’s Office in an appropriate format (such as PDF) specified by the Provost’s Office no later than the date of its publication. The Provost’s Office may make the article available to the public in an open-access repository.

The Office of the Dean will be responsible for interpreting this policy, resolving disputes concerning its interpretation and application, and recommending changes to the Faculty from time to time. The policy will be reviewed after three years and a report presented to the Faculty.”

There have been many champions of this and related issues throughout the academic world, including Peter Suber and Michael Carroll. At Harvard, the university librarian, Robert Darnton, and Berkman Center faculty director Stuart Shieber, of the new school of engineering and applied sciences at Harvard, are chief among them.

Prof. Robert Darnton said of this vote: “That such a renowned law school should support Open Access so resoundingly is a victory for the democratization of knowledge. Far from turning its back to the outside world, the HLS is sharing its intellectual wealth.”  Amen.