Accounts of Accountability

It’s important to keep politicians accountable. But what follows for regulation of money in politics?

Freedom of expression is necessary, among other things, to foster political accountability in a democracy. On that much we can surely all agree. But what follows from the link between the freedom of political discussion and our interest in holding our elected representatives to account? Specifically, when it comes to regulating money in politics, should a healthy concern with maintaining accountability cause us to favour more restrictions, or fewer? The answer to that question is, to say the least, not obvious, as a comparison between two judicial opinions linking democratic accountability and freedom of expression but coming to opposite conclusion shows.

In McCutcheon v Federal Election Commission, 134 S Ct 1434 (2014), the majority of the U.S. Supreme Court struck down limits on the total amount of money an individual is allowed to donate to candidates at an election. (The limit on the amount that can be given to an individual candidate was not at issue.) In dissent, Justice Breyer drew on the value of accountability to justify the limitation of the role of money in politics. He noted that “political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.” (1467) The protection of the freedom of expression, he continued, “advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” (1467; emphasis in the original) According to Justice Breyer, the undue influence of substantial pecuniary contributions to politicians, which he characterized as

[c]orruption breaks the constitutionally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. (1467)

In other words, to keep politicians accountable to the voters, it is necessary to limit the influence of money on them, and in this particular case to uphold the constitutionality of limits on donations.

Compare this with the opinion of Australian High Court’s Chief Justice Mason in the case of Australian Capital Television Pty Ltd v Commonwealth, (1992) 177 CLR 106. At issue were provisions eliminating the ability of both political parties and candidates and of “third parties” to pay for electoral advertisements in broadcast media. (Parties represented in Parliament were given some free time for their advertisements.) Chief Justice Mason also extolled the virtues of democratic accountability and emphasized the link between the actions of the governors and the opinions of the governed:

the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act. Freedom of communication as an indispensable element in representative government. [37]

Democratic accountability thus required that the freedom of expression be protected (even in the absence of an explicit guarantee in the constitutional text):

Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. … Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. … Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative. [38]

So far, so similar to Justice Breyer. But from this, Chief Justice Mason went on to reason that the restrictions on electoral advertising at issue could not stand, because they were incompatible with the freedom of political communication, and thus undermined democratic accountability. More money in politics, not less, was the way to keep politicians accountable to the people.

Now, contrasting these two opinions in this way is oversimplifying things. The issues in McCutcheon and in Australian Capital Television were somewhat different. The former concerned the giving of money to politicians; the letter, spending both by politicians and by civil society actors. Although both come within the general category of “money in politics” concerns, it is possible to think that one but not the other can be strictly regulated. Besides, to some extent at least, both McCutcheon and Australian Capital Television were about means, not just ends. It is possible that, confronted with different regulations, both Justice Breyer and Chief Justice Mason would have reached different conclusions by reasoning from the same values.

That said, we know that the same faction of the U.S. Supreme Court that dissented in McCutcheon was also favourable to restrictions on electoral speech by (at least some) members of the civil society in Citizens United v Federal Election Commission, 558 US 310 (2010). And while there might be a point at which Justice Breyer would have balked at the limitation of permissible financial contributions to politicians, it is not clear where that point lies. Conversely, although Chief Justice Mason suggested that a less restrictive set of regulations might have been compatible with the freedom of political communication, existing regulatory schemes, such as Canada’s or New Zealand’s, would likely not have made the cut, and I struggle to imagine one that would. The disagreement is not only, and I suspect not mainly, about means. It is driven to a substantial extent by conflicting interpretations of the value of accountability.

I’ll leave to another post (maybe, sometime) a discussion of who, if anyone, of Justice Breyer and Chief Justice Mason is right. My point here is rather that appeals to values, and even to generally accepted truths (such as the importance of free political expression to democratic accountability) are unlikely to settle the difficult disputes that arise in the law of democracy. The values may be shared at a sufficiently high level of abstraction, yet understood so differently as to lead those who hold them to starkly different conclusions.

Losing Our Way

Neither “society’s tolerance” nor the “captive audience” doctrine justify censorship of anti-abortion ads

Over at ABlawg, Ola Malik has a post praising the decision of the Alberta Court of Queen’s bench in Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2016 ABQB 734. I have been scathing of that decision here, and I believe that Mr. Malik is wrong. His posts illustrates the sort of thinking, which is also at work in the Court of Queen’s bench decision, that will, if unchecked, render freedom of expression an empty phrase in Canada. Contrary to what Justice Anderson and Mr. Malik believe, it is not, and it cannot be, the state’s job to protect citizens from any discomforting ideas that might come their way.

By way of reminder, the decision at issue allowed a municipality to censor ads that an anti-abortionist group sought to post on the outside of its buses. In the court’s view, this decision was reasonable because the ads targeted a captive audience that could not help but see them, and because they risked causing upset and even harm, both because they featured the word “killing” and because they referred to a website that made derogatory statements about women who had abortions. In my post, I said that this “reasoning is disturbing if not perverse”, notably because it could be applied to censor any strongly expressed message (though it is, of course, rather more likely to be applied to “politically incorrect” views than, say to Oxfam’s or Amnesty International’s ads).

By contrast, Mr. Malik, a municipal prosecutor, is very happy about a decision that is “most helpful to municipalities seeking to limit the placement of controversial advocacy messaging in public places”. He claims that

speech which targets certain groups of people, especially those who are otherwise exercising their legal rights (in this case, women seeking abortions) cannot be said to promote the objectives which underlie freedom of expression.

He argues that Justice Anderson is right to have “endorsed the captive audience doctrine”, since the corollary of the freedom to speak is the freedom not to hear unwanted speech. Mr. Malik adds that “[h]ad the advertisement been … ‘merely informative and educational’, [77] the Court may have been less prepared to use the captive audience doctrine.” But the ad in question was actually harmful, and the Court, says Mr. Malik, was right so to find: “the Court recognized that hateful or offensive expressive activity in a prominent public space can have a harmful psychological impact on the well-being of civil society”. Mr. Malik cautions, however, that such findings “need[] to be arrived at with care”, so as to avoid “underestimating society’s tolerance for controversial and provocative messaging. And”, he says, “we need to be mindful that a test which references community harm doesn’t turn into a test of community censorship”.

With respect, community censorship ― or, more accurately, censorship by bureaucrats and judges purporting to act on the community’s behalf ― is precisely what Mr. Malik supports, whether or not he intends to do so. Freedom of speech is, among other things, te freedom to engage in “controversial advocacy messaging in public spaces”. It is, among other things, the freedom to criticize “certain groups of people”, including people “who are otherwise exercising their legal rights” ― to have an abortion, to eat meat, to minimize tax liabilities, to fail to give to charity, what have you. The law is not the measure of morality, and in a free society what is moral ― as well as what is legal ― is an appropriate subject for public debate and criticism. The issue is not just that, by allowing bureaucrats and judges to stifle debate and silence criticism, we might “underestimat[e] society’s tolerance”. It’s that the extent of society’s tolerance cannot be the measure of the freedom of expression that its members enjoy. If it had been otherwise, slavery would still be legal, homosexuality would not, and women would still be denied the vote. Advances in human rights are rarely achieved entirely within society’s comfort zone.

A few observations on the concept of a captive audience, of which Mr. Malik makes much, are also in order. As I said in my first post, the idea that people who see buses in the street are a captive audience unable to avoid the message communicated by the ads posted on these buses is preposterous. If the state is able to censor any message merely because someone might be unwittingly confronted with it for a few moments, the state can censor anything at all. Unsurprisingly, this is not what the cases to which Mr. Malik refers, and those to which he doesn’t, hold.

The case to which he ascribes “the most comprehensive treatment of the captive audience doctrine” in Canada,  R v Breeden, 2009 BCCA 463, does not turn on the application of this doctrine at all, but on the question whether a person can be prevented from protesting at very specific locations (namely the lobby of a courthouse and that of a municipal council building) that were not, historically or currently, normally used for such expression. (This alone would suffice to distinguish the case from that of bus advertising even if the case really did support Mr. Malik’s use of it. But it does not.) In fact, to the extent that Breeden has relevance for the issue of captive audiences, its import is precisely the opposite of what Mr. Malik takes it to be. Justice Hall, writing for the unanimous court, pointed out that

[i]t was not suggested in this case that he express himself to a different group of people, rather simply that he change the location of his activity to the sidewalk area outside the buildings, where he would have access to the same potential audience. [27; emphasis mine]

The ability to communicate with “the same potential audience” was a crucial reason was the restriction on the place where this communication could take place was upheld.

As for the American jurisprudence, it is no more supportive of Mr. Malik’s position than Breeden. Mr. Malik quotes from the case of Lehman v City of Shaker Heights, 418 US 298 (1974); he does not say that the opinion he is quoting is a concurrence, by Justice Douglas, which would have found that all advertisement in buses ― not on their outside, mind you, so that the case for the proposition that the audience is a captive one is significantly stronger ― are an infringement of the commuters’ rights. Justice Douglas would not have allowed the city that owned the buses to pick and choose ads that were uncontroversial or harmless. On the contrary, he did

not view the content of the message as relevant either to petitioner’s right to express it or to the commuters’ right to be free from it. Commercial advertisements may be as offensive and intrusive to captive audiences as any political message. (308)

In any case, Justice Douglas was alone in this view. Justice Blackmun’s opinion (with the support of three others) referred to the issue of captive audiences, but only as one reason among several for which the city could reasonably have chosen to prohibit political advertising but not the commercial sort. Another such reason, it is worth noting, is “minimiz[ing] … the appearance of favoritism”. (304) The decision of the Alberta Court of Queen’s Bench, and Mr. Malik’s arguments, do no such thing ― they do not say that the municipality wanted to, or would or ought to have, banned pro-choice ads as well as anti-abortion ones. As for the for the other opinion in Lehman, that of Justice Brennan, it would have found content-based decisions about which advertising to allow unconstitutional.

Let me mention another American case, which Mr. Malik ignores: Cohen v California, 403 US 15 (1971), the famous “Fuck the draft” decision. That slogan was emblazoned on a jacket that the appellant had worn in a courthouse, and Justice Harlan, for the unanimous court, wrote that

in arguments … much has been made of the claim that Cohen’s distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately [punish him] in order to protect the sensitive from otherwise unavoidable exposure to appellant’s crude form of protest. (21)

But, Justice Harlan responded,

[o]f course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. … Those [confronted with Cohen’s jacket] could effectively avoid further bombardment of their sensibilities simply by averting their eyes. (21)

Mr. Malik, Justice Anderson, and anyone else inclined to agree with them would do well to study that opinion, and to take Justice Harlan’s advice to heart.

As Edmund Burke wrote long ago,”[t]he great inlet by which the colour for oppression entered into the world is by one man’s pretending to determine concerning the happiness of another”. This too is something that our would-be censors, who would determine concerning our happiness, or, in modern jargon ― since we have learned the words, without embracing the ideas, of John Stuart Mill ― protect us from harm, would do well to ponder. That a prosecutor, like Mr. Malik, supports censorship is disappointing; that a judge, like Justice Anderson, endorses it is distressing; but if our fellow-citizens were to agree with them, that indeed would be dispiriting.

Aborting Freedom of Expression

If a city can censor anti-abortion ads to prevent hurt feelings, is there anything that could not be censored?

The decision of the Alberta Court of Queen’s Bench in Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2016 ABQB 734 was issued before the holidays, and was reported on in the media earlier this month, but it has only recently become available on CanLII, and it’s worth a comment. Justice Anderson upheld, as reasonable under the framework for reviewing administrative decisions challenged for contravening the Canadian Charter of Rights and Freedoms developed by the Supreme Court, the decision of the city of Grande Prairie to deny an anti-abortion organization the opportunity to run ads on the city’s buses. She was wrong to do so, and her decision, if it is upheld or followed, will have grave consequences for freedom of expression in Canada.

* * *

Justice Anderson’s description of the ad in question is worth reproducing in full (perhaps with a Posnerian lament about the absence of pictures in legal texts):

The ad contains three images: the first of a fetus at approximately 7 weeks development, the second of a fetus at approximately 16 weeks development, and the third a blank red circle with no image. Under the first image is the caption “7-weeks GROWING”, under the second image the caption states “16-weeks GROWING” and inside the third blank image is the word “GONE”. To the right of the images is the statement “ABORTION KILLS CHILDREN” followed by a web address “ENDTHEKILLING.ca” and the name of the organization behind the ad. [5; emphasis in Justice Anderson’s reasons ― it is not clear whether it was also in the ad itself]

Justice Anderson notes that, at the time, “the City’s Transit Manager, Jason Henry, explained that City buses are taxpayer funded vehicles and that ‘this ad would be disturbing to people within our community'”. [8] The City’s asserted reasons for banning the proposed ad would change later on, however, “to ensur[ing] that hateful expression” ― indeed “hate propaganda” ― “was curtailed to protect the public from the harmful effects of such expression”. [45] The City also required advertising on its buses to comply with the  Canadian Code of Advertising Standards which “states among other requirements that ads shall not demean, denigrate or disparage one or more identifiable persons, or group of persons”. [46]

The way to assess the validity of administrative decisions said to contravene the Charter ― the freedom of expression guarantee of section 2(b) in this case ― was set out by the Supreme Court in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395. There, Justice Abella explained that “[i]f, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable” [58] and thus valid. However, as Paul Daly explains, the Supreme Court’s subsequent decision in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 (about which I have written here) suggests “that there is little difference between Doré reasonableness” and ordinary Charter analysis.

Justice Anderson concluded that

the statutory objective of controlling the content of advertising on City buses is to provide a safe and welcoming transit system, as part of the municipality’s responsibility … to provide services and develop and maintain a safe and viable community. [51]

This objective was agreed to be important enough (in keeping with the Supreme Court’s decision in Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 SCR 295, which considered the constitutionality of a policy prohibiting all political advertising on city buses ― and eventually found it unconstitutional). “The question”, Justice Anderson observed, “is whether the City limited the [anti-abortionists’] right to expression no more than was necessary in pursuit of the statutory objective”. [53]

Justice Anderson found that this was indeed the case. It mattered, in her view, that “a bus exterior is a location where it is almost impossible to avoid the expression” [68] ― one cannot just move and look away. Moreover, “ads on city buses are viewed in very close proximity by those who have no other means of transportation [and] by other users of the road”. [69] In short, these ads target a captive audience. As a result, they can be more narrowly regulated than other forms of expression, so as to protect “vulnerable groups”, notably “children”, who can in other cases be prevented from witnessing “upsetting images and phrases”. [72] Justice Anderson also insists that the infringement of the freedom of expression “was limited to the rejection of this particular ad. The City did not state that abortion related ads would not be permitted, nor did it preclude the [anti-abortionists] from bringing forward a different ad”. [74] She explains that she has “gone beyond the ad in this case”, looking at the website which it references, and found there “strong statements that vilify women who have chosen, for their own reasons, to have an abortion; [these statements] are not merely informative and educational”. [80] The City, Justice Anderson concluded, is entitled “to protect the general public, including children, from the harm caused by what many members of the public would view as disturbing expression in an exceedingly public space”, [81] whether or not it amounted hate speech:

[T]he ad is likely to cause psychological harm to women who have had an abortion or who are considering an abortion. It is also likely to cause fear and confusion among children who may not fully understand what the ad is trying to express. They may not be familiar with the word abortion, but they can read and understand that “something” kills children. Expression of this kind may lead to emotional responses from the various people who make use of public transit and other users of the road, creating a hostile and uncomfortable environment. [82]

Justice Anderson also briefly considered, and rejected, a number of arguments based on purely administrative law principles, but I will not discuss that portion of her reasons here.

* * *

Justice Anderson’s reasoning is disturbing if not perverse. Her claim that bus advertising is somehow impossible not to look at is odd. It is certainly not consistent with Justice Deschamps’ reasoning for the Supreme Court’s majority in Greater Vancouver, which ― although it did raise the possibility that some forms of expression might be curtailed due to concerns about their audience, did not find that bus advertising was of that nature. Her claim that a different ad could have been allowed is close to mockery ― there is no reason to think that the City would have allowed another anti-abortion ad; it certainly suggested no such thing. The ad at issue was not gruesome, violent, or explicitly derogatory of anyone; this is why Justice Anderson felt the need to “go beyond” it to support her conclusions. Quite apart from the question whether rules of judicial notice authorized her to do so, as she claims they did, the rather obvious fact is that her captive audience argument, whatever its value, does not work once one has to go “beyond” the message that the purportedly captive audience sees. Justice Anderson might not think so, but no one has go on a website just because it is mentioned in an ad. As for claims of psychological harm, Justice Anderson does not even pretend to support them with a shred of evidence. She simply makes them up.

But consider what will happen to freedom of expression in Canada if different strands of this reasoning are adopted as part of our law. It is difficult to see how Justice Anderson’s bizarre views on what makes for a captive audience do not apply to forms of advertising other than ads on bus sides ― large billboards, for example ― which could then also be censored if found to contain “upsetting images and phrases”. Censorship could be imposed on the basis of vague concepts, such as whether something is “upsetting” or “psychologically harmful” ― according, not to some scientific definition, but to the whim of a bureaucrat or a judge. Indeed, a message could be censored not only because it contains “upsetting images and phrases”, but because it leads its audience ― or a bureaucrat or judge ― to some other upsetting message. In more concrete terms, an Oxfam ad depicting an emaciated child, or an Amnesty International ad stating that “Torture disappears only when you do something about it” could be banned from public view because they contain “upsetting images” or words, or because they would cause “psychological harm” to those who do nothing to help about starving children or abused prisoners.

* * *

But, you might say, of course these ads won’t be banned. They might be upsetting, but in a good way. But that’s a subjective viewpoint. And while abortion is legal in Canada while torture is not (though failing to do anything about torture in other countries is certainly legal too), a free society tolerates appeals for the law to be changed, and for previously legal behaviours to be outlawed. The debate about abortion is not going to go away censoring one side of it. If anything, seeing the state take the side of their opponents will only make anti-abortionists more radical and uncompromising.

And beyond this specific debate, there are other disagreements in society, which sometimes cause people to speak in bitter and upsetting terms about each other. A free society is not a safe space in which authorities protect people from having their precious feelings hurt. Justice Anderson does not understand this. I can only hope that other Canadian judges still do.

Online Gambling

Over at the EconLog, David Henderson has an interesting post that allows me to come back to some themes I used to carp on quite a bit, but haven’t returned to in a while now. In a nutshell, it is the story of antiwar.com, a website that, naturally enough, illustrates its message with some graphic imagery. Google concluded that the images contravened its policies, and withdrew the ads it placed on the website, causing the website to lose revenue on which they had relied. Apparently, Google does not want its ads to appear next to any picture that would not be “okay for a child in any region of the world to see,” which would disqualify many iconic pictures taken in wars past ― and not just wars, one might surmise.

Prof. Henderson points out that this is not “censorship,” since Google is a private firm acting in a purely commercial capacity here. But, he argues, this is still a “gamble” on Google’s part:

Google faces a tradeoff. On the one hand, there are probably many advertisers, possibly the vast majority, who don’t want their ads to appear alongside pictures of blood and gore, people being tortured, etc. So by being careful that web sites where ads appear do not have such pictures, Google gets more ad revenue than otherwise. On the other hand, Google is upsetting a lot of people who see it as dictating content. This will cause some people to shun Google. … [I]f the upset spreads, there could be a role for another competitor.

Perhaps so, although as I noted before, Google’s competitors ― such as Apple, with its iTunes store ― also seem to be choosing to use their own platforms to present sanitized versions of reality.

And as I also pointed out in the past, Google’s position with respect to freedom of expression is inherently conflicted. On the one hand, Google sees itself as engaged in the business of expression, arguing that its search algorithms reflect choices of an editorial nature that deserve constitutional protection. On the other, when it exercises control over its various platforms (whether the search engine itself or YouTube, the ad service, etc.), it can, and is frequently asked to, act as an agent for governments ― and not only democratic governments either ― who seek to censor expression they dislike. There is a danger that Google will choose to sacrifice some of its users’ freedom in order to protect its own by ingratiating itself with these governments. Furthermore, Google may be coming under pressure, not only from governments, but also from commercial partners it needs to keep on board ― or at bay ― and, possibly, from various “civil society” actors too, in exercising control over its platforms. The antiwar.com story is only one small part of this broader trend.

This is, or should be, well understood ― which makes me think that Google is not the only party in this story who took a gamble. Antiwar.com did too, as does anyone else who comes to rely on Google or other similar platforms, despite knowing the pressures, commercial and otherwise, that these platforms will come under. If anything, it is remarkable how successful this gamble usually turns out to be. Still, it is a bet, and will sometimes turn out badly.

I blogged last year about an argument by Ethan Zuckerman to the effect that the ad-based business model was the internet’s “original sin.” Mr. Zuckerman made his case from the perspective of the users, who must accept privacy losses resulting from tracking and profiling by advertisers in exchange for free access to ad-supported content. The antiwar.com story suggests that, for some content-producers at least, accepting the revenue and, as prof. Henderson points out, the convenience that come with the current business model and its major players was also a Faustian bargain. And yet, as for users, it is not quite clear what alternative arrangement would be viable.

In the face of what some may well be tempted to interpret as a market failure, it seems reasonable to expect calls for regulation, despite what libertarian types such prof. Henderson or the antiwar.com people themselves may say. There will be, and indeed, as I noted in the post about Apple linked to above, there already are, people calling for the regulation of online platforms, in order to make their behaviour conform to the regulators’ ideas about freedom of expression. Yet we should not forget that, on the whole, the net contribution of Google and the rest of them to our ability to express ourselves and to find and access the thoughts of others has clearly been positive ― and certainly much more positive than that of governments. While attempts at making a good thing even better would be understandable, they too would be gamble, and a risky one.

Disrupting C-36

The Economist has published a lengthy and informative “briefing” on the ways in which the internet is changing prostitution ― often, although not always, for the benefit of sex workers. As it explains, the effects of new technologies on what is usually said to be the oldest profession are far-reaching, and mostly positive ― insofar as they make sex work safer than it used to be. If the federal government had been concerned with protecting sex workers, and if Parliament had truly “ha[d] grave concerns about … the risks of violence posed to those who engage in” prostitution, as it affected to be in the preamble of the so-called Protection of Communities and Exploited Persons Act, S.C. 2014 c. 25, better known as Bill C-36, they would have considered the internet’s potential for benefiting sex workers.

But as the government’s and Parliament’s chief concern was apparently to make prostitution vanish by a sleight of criminal law’s heavy hand, its middle finger raised at the Supreme Court, they instead sought to drive sex workers off the internet. The new section 286.4 of the Criminal Code, created by C-36, criminalizes “[e]veryone who knowingly advertises an offer to provide sexual services for consideration,” although section 286.5 exempts those advertising “their own sexual services.” In other words, if a sex worker has her own website, that’s tolerated ― but if she uses some other service, or at least one geared specifically to sex workers and their potential customers, the provider of that service is acting illegally.

Meanwhile, according to the Economist, in the market for sex, as in so many others,

specialist websites and apps are allowing information to flow between buyer and seller, making it easier to strike mutually satisfactory deals. The sex trade is becoming easier to enter and safer to work in: prostitutes can warn each other about violent clients, and do background and health checks before taking a booking. Personal web pages allow them to advertise and arrange meetings online; their clients’ feedback on review sites helps others to proceed with confidence.

Above all, the ability to advertise, screen potential clients, and pre-arrange meetings online means that sex workers need not look for clients in the most dangerous environment for doing so ― on the street. Besides, “the internet is making it easier to work flexible hours and to forgo a middleman,” and indeed “it is independent sex workers for whom the internet makes the biggest difference.”

The internet is also making sex work safer. Yet the work of websites that “let [sex workers] vouch for clients they have seen, improving other women’s risk assessments,” or “where customers can pay for a background check to present to sex workers” is probably criminalized under the new section 286.2(1) added to the Criminal Code by C-36, which applies to “[e]veryone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1)” ― the “obtaining sexual services for consideration” offence. Forums where sex workers can provide each other with tips and support can be shut down if they are associated with or part of websites that advertise “sexual services.”

As the Economist points out, the added safety (both from violent clients and law enforcement), convenience, and discretion can attract more people into sex work. So trying to eliminate the online marketplace for sex makes sense if one’s aim is, as I put it here, “to drive people out of sex work by making it desperately miserable” ― but that’s a hypocritical approach, and not what C-36 purports to do.

In any case, criminalization complicates the work of websites that help sex workers and their clients, but does not stop it. They are active in the United States, despite prostitution being criminalized in almost every State ― though they pretend that their contents are fictional. They base their activities in more prostitution-friendly jurisdictions. A professor interviewed by the Economist points out that a ban on advertising sexual services in Ireland “has achieved almost nothing.” There seems to be little reason to believe that the ban in C-36, which has a large exemption for sex workers advertising themselves, would fare differently.

The Economist concludes that “[t]he internet has disrupted many industries. The oldest one is no exception.” Yet the government and Parliament have been oblivious to this trend, as they have been oblivious to most of the realities of sex work. One must hope that courts, when they hear the inevitable challenge to the constitutionality of C-36, will take note.

Felix Peccatum

There was an interesting piece in The Atlantic a couple of weeks ago, in which Ethan Zuckerman argued that we should, as the subtitle would have it, “ditch the [internet’s] ad-based business model and build a better web.” Accepting internet content should be free to access, online services free to use, and that the costs of hosting the contents and providing the services can be paid for by tying them to advertising was, Mr. Zuckerman says, “the original sin of the web.” It sounded like a good idea at time, but turned out badly. It is time to repent, and to mend our ways. But is it?

Mr. Zuckerman argues that the ad-based business model created an “internet [that] spies at us at every twist and turn.” In order to persuade potential investors to support a nascent website, its creators must convince them that the ads on that site “will be worth more than everyone else’s ads.” And even if the ads are not actually worth very much, the potential for improvement is in itself something that can be marketed to investors. The way to make the ads on a website worth more than those on others ― say, on Facebook ― requires “target[ing] more and better than Facebook.” And that, in turn, “requires moving deeper into the world of surveillance,” to learn ever more information about the users, so as to make the targeting of ads to them ever more precise.

Over the years, the progressive creep of online tracking and surveillance has

 trained Internet users to expect that everything they say and do online will be aggregated into profiles (which they cannot review, challenge, or change) that shape both what ads and what content they see.

Despite occasional episodes of unease over what is going on, even outright manipulation by the providers of online services is not enough to turn their users off. As with private service providers, says Mr. Zuckerman, so with governments:

[u]sers have been so well trained to expect surveillance that even when widespread, clandestine government surveillance was revealed by a whistleblower, there has been little organized, public demand for reform and change.

Trust in government generally has never been lower, yet it seems that online, anything goes.

Mr. Zuckerman points out that the ad-based business model had ― and still has ― upsides too. When it took off, it was pretty much the only way “to offer people free webpage hosting and make money.” Initially at least, most people lacked the means ― the technical means, never mind financial resources ― to pay for online services. Offering them “free” ― that is to say, by relying on advertising instead of user fees to pay for them ― allowed people to starting using them who would never have done so otherwise:

[t]he great benefit of an ad supported web is that it’s a web open to everyone. It supports free riders well, which has been key in opening the web to young people and those in the developing world. Ad support makes it very easy for users to “try before they buy.”

Indeed,

[i]n theory, an ad-supported system is more protective of privacy than a transactional one. Subscriptions or micropayments resolved via credit card create a strong link between online and real-world identity, while ads have traditionally been targeted to the content they appear with, not to the demo/psychographic identity of the user.

In practice, well, we know how that worked out.

Besides, says Mr. Zuckerman, not only did the ad-based internet do away with our privacy, it also produces “clickbait” that nobody really wants to read, is increasingly centralized, and breaks down into interest-based echo chambers.

The solution on which Mr. Zuckerman rests most of his hopes for a redemption of the web is a move from ad-based to subscription based business models. He points out that Google already offers companies and universities the possibility of paying for its products in exchange for not offering their employees or students the ads that support its free Gmail service. And he is confident that “[u]sers will pay for services that they love,” even if a shift to subscription-based business models would also mean that users would simply abandon those for which they have no deep affection. This, in turn, would produce “more competition, less centralization and more competitive innovation.” A shift to subscription-based web service would require new means of payment ― something with lower transaction costs than credit-card systems or PayPal. Such technologies do not yet exist, or at least are not yet fully ready, but Mr. Zuckerman is hopeful that they will come along, and allow us to move away from the “fallen” ad-based internet.

But even if a return to the online garden of Eden ― which, much like “real” one, never actually existed ― were technically possible, would it be desirable? Mr. Zuckerman acknowledges that whatever business model we turn to, “there are bound to be unintended consequences.” Unintended, perhaps, but not entirely unforeseeable. Even if transaction costs can be lowered, a subscription-based internet would be less accessible for many people, in particular those in the less well-off countries, the young, and the economically disadvantaged. Those who, in many way, need it most. Besides, it seems doubtful to me that a subscription-based internet would generate more innovation than the current version. As Mr. Zuckerman points out, the ad-based model has the virtue of letting users try new services easily. It also means that abandoning a service does not mean throwing away the money paid to subscribe to it. It is thus friendlier to newcomers, and less favourable to incumbents, than a subscription-based model. (Just think of the number of new media sources that developed online in the last 15 years ― and compare it with, say, the number of new newspapers that appeared in the previous decades.)

The tracked, surveilled ad-based web has its downsides. But it lowered barriers to entry and allowed the emergence of new voices which, I strongly suspect, could not have been heard without it. (By way of anecdote, I had enough doubt about this blogging thing to begin with that I’m pretty sure I wouldn’t have started if I had to pay for it too. Alternatively, I don’t suppose anyone reading this now would have been willing to pay me!) If embracing ads was indeed the internet’s original sin, then I believe that it was, as Augustine suggested of the original original one, felix peccatum ― a fortunate one.

The Future is Even Creepier

There is an interesting story in today’s New York Times that brings together a couple of my recent topics, the tracking of internet users by the websites they visit and the use of the data thus generated in advertising, about which I wrote here, and the use of target-specific outreach and advertising by President Obama’s re-election campaign, about which I wrote here. There are even, for good measure, overtones of human dignity there.

The story is about the way the data gathered when we use the internet, whether just browsing or searching for something in particular, are then used to throw those annoying targeted ads at us wherever we go. The data is collected by computers of course; it is computer algorithms, too, that analyze it and use it to assign us to some fine-grained category (depending on our inferred interests and means); and it is still computers that sell the right to show us a display ad to companies that might be interested in the specific category of consumer each of us is deemed to belong to.

This is roughly similar, if I understand correctly, to what the Obama campaign did in studying the data it had collected about voters and using it to target each person specifically according to his or her likely interests and concerns, except that the field of application here is commerce rather than politics. And just as some people have doubts about the morality of that tactic in the political realm, there are those who are convinced that its application in the commercial one is immoral. The Times quotes a consumer-rights advocate as saying that “[o]nline consumers are being bought and sold like chattel [sic]. … It’s dehumanizing.” As with what the Obama campaign did, I’m not sure about that. I’m not convinced by the description of the process as selling people―it involves selling information about me, and the right to show me a message on which I remain free to act or not, not my personhood. I don’t feel dehumanized by those ads―just creeped out, which, I think, is a very human reaction, by the way (I doubt that cattle are creeped out by being sold).

Perhaps there is an echo here of the debate, in human dignity scholarship, over whether dignity and its violations are an objective matter, meaning that one’s dignity can be violated even though one doesn’t feel that it is ,or a subjective one, meaning that one’s perception is determinative. (A classic example of this problem is the controversy over dwarf-tossing: the dwarf consents to being thrown around for sport and makes money out of it―but can the state prohibit the activity regardless, on the ground that it is a violation of his dignity even if he doesn’t think it is?)

I should note one possible difference between what is happening in the commercial advertising context and what the Obama campaign did. The companies that track internet users claim that those whom they track are not identified in any recognizable fashion. When they sell the right to show me ads to advertisers, they might describe me as something like “the guy who reads legal blogs and news websites a lot and has been looking at cell phones recently.” The Obama campaign, of course, was identifying people by name, address, etc., in order to reach out to them. So maybe the internet-ad people are less creepy than the politicians. But maybe not. The Times’ article suggests people are very skeptical about the actual anonymity of internet users tracked by advertisers, so the difference might be illusory.

As I said above and in my previous posts, even if this is not immoral and/or illegal, it is creepy. Perhaps “do not track” features of internet browsers will save us from the onslaught of creepiness. But not only are advertisers trying to fight them but, as they are pointing out, their use might undermine the bargain at the foundation of the internet―in exchange for putting up with ads, we get to enjoy all sorts of great content (such as this blog, right?) for free. Perhaps we are now finding out that the bargain was a Faustian one. But it’s likely too late to get out of it.