No Safe Harbor. Essays About Pirate Politics.

Assassinating Citizens Marcus Kesler

On September 30th, 2011, the CIA targeted and killed a citizen of the United States overseas. The citizen was Anwar Al-Awlaki, a Yemen-American born in New Mexico who was living in Yemen where he practiced his religion as an Imam and who has been accused of hiding in Yemen to avoid capture for his suspected roles in various terrorist attacks against the United States.

In December of last year, Al-Awlaki’s father filed suit against the Justice Department to stop the targeted killing of his son as authorized by President Obama. US District Judge John Bates dismissed the case, stating that his father had no standing to file suit and that a judicial consideration regarding the extrajudicial execution of a US citizen would have to wait another day[1]. Lawyers for the US Government would not confirm that Al-Awlaki was targeted for execution, but stated that Al-Awlaki could always file suit himself or present himself to US authorities.

The argument made by the Justice Department was that a US citizen has to file suit and present himself to a court in order to prove that the Government has no authorization to execute him, that he is guilty until he proves himself innocent. This decision appears to stand in stark contrast to the 5th Amendment of the Constitution of the United States, which would seem to offer multiple protections to a US citizen in this case:

The right to have a grand jury hear the case that the Justice Department brings against them, to decide if there is enough evidence to proceed with a trial. Crimes punishable by death must be tried after indictment. The Government never made its case in a court of law, instead it argued before Judge Bates that the burden of proof that Al-Awlaki should not be executed lies with him. This also appears to bring forth another aspect of the 5th Amendment, self incrimination.

The 5th Amendment states that a witness may not be forced to testify if such testimony could lead to the witness incriminating himself. Requiring a person to argue why they should not be executed without due process, instead of filing a case against such a person and arguing to a jury why this person should be executed, would certainly result in self incrimination. Another important distinction to make is that asserting your right to remain silent and refusing to testify does not imply guilt. The Supreme Court reinforced in 2001 that this constitutional safeguard exists specifically for the innocent, stating in their ruling of Ohio v. Reiner that “This Court has never held, however, that the privilege is unavailable to those who claim innocence. To the contrary, the Court has emphasized that one of the Fifth Amendment’s basic functions is to protect innocent persons who might otherwise be ensnared by ambiguous circumstances.”[2] The common assumption of “If he won’t testify against himself, then he must have something to hide” is simply not supported in judicial case law, and the framers intention was clearly to protect US citizens from an aggressive Government.

Due Process: A person may not be deprived of life, liberty, or property without ”due process.” The Government is held to abide by the law of the land, even if the person stands accused of violating the law. The argument of “the person is accused of breaking the law of the land, so he lost the protection of the same laws” does not stand.

Since the beginning of this “War on Terror” the role of constitutional safeguards when dealing with accused terrorists has been a question that has been raised multiple times. When these questions are raised inside a court of law, the preferred tactic of the Justice Department has been to raise the issue of “national security.” The argument is they cannot answer questions, because answering them would place the United States in danger. So not only is the burden of proof on the accused, but the Government argues that it does not have to defend itself because doing so would harm national security. When the Government does give an answer, usually outside a court of law to avoid establishing case law that could hinder its operations in the future, the answers include various arguments about how constitutional safeguards do not apply to individual cases:

When news surfaced about the actions of US soldiers in Abu Ghraib, people started to question if these actions violated our laws or international laws. The argument was that since the prisoners were neither US citizens, nor held on US soil, no constitutional safeguards applied. The remaining question on whether these actions violated international law was never fully answered either.

When presented with news regarding the detainment and torture/enhanced interrogation of enemy combatants at the Guantanamo Bay Detention Camp located inside the Guantanamo Bay Naval Base the question of constitutional safeguards was raised again. This time the Government was acting inside US jurisdiction, located on land under the control of the United States Government leased from Cuba. The argument was raised that since the land was controlled by the Government, the law of the land applies and must be followed by the Government. The Justice Department argued that since the detainees were not US citizens and classified as enemy combatants, no constitutional rights exist that would protect the detainees. The mantra repeated by supporters of these actions was “if you are not American, you are not protected by the Constitution.”

Anwar Al-Awlaki was a United States citizen, and as such should have been protected by Constitutional safeguards. The main argument against giving enemy combatants the protections guaranteed by our Constitution has been the lack of citizenship. “American Rights are only for Americans” could not be used as a disqualification for Al-Awlaki. Instead the Justice Department issued a memo with the opinion that war is due process enough[3]. Instead of trying him before a court to decide if he has committed a crime worthy of the death penalty, which would be the definition of due process, it was decided that the fact that we are at war and think he is on the wrong side was enough due process to justify an extrajudicial execution (otherwise known as an assassination).

So we now have a very slippery slope. When the “War on Terror” started, the enemy was “them” and they had no rights. Then the enemy became “foreigners on foreign soil” and they had no rights. Once we were acclimated to that assumption, the enemy became “foreigners on US soil” and they had no rights. Now the enemy can be a US citizen, who has no rights, and can be assassinated at the discretion of the executive branch of our Government. Who will be the next person or group to be summarily stripped of the protections granted to them by our Constitution?

After the Oklahoma City Bombing, a terrorist attack orchestrated and executed by an American citizen, Timothy McVeigh was not assassinated. He was arrested, indicted, tried in a court of law, and then executed. Following the Fort Hood shooting, Nidal Malik Hasan is awaiting court martial for his accused crimes. After the Tuscon Shooting, Jared Lee Loughner was arrested and has been indicted for the attempted assassination of a member of the House of Representatives. He is awaiting trial, and is still considered innocent until he has been found guilty by a court of law. Here we have three American citizens who have been accused of terrorism and murder, who are given full due process as guaranteed to them by the Constitution of the United States. Anwar Al-Awlaki was accused of committing many crimes against fellow citizens of the United States, but he has never been charged with the act of taking another person’s life. The accusations against him include hateful speech, inciting violence, calling for the murder of fellow Americans, even training others how to kill Americans. And for these accusations he was executed by the CIA. It appears that if you are accused of killing your fellow citizens, you are entitled to due process in accordance with our Constitution. But if you are accused of training or encouraging others to kill your fellow citizens, you can be assassinated without any judicial proceeding at all.

Where will this development lead us? Should our Government be able to declare that US citizens who speak out against the Constitution lose all constitutional protections? What makes a citizen an enemy combatant? It appears that rhetoric may be enough, since even citizens who stand accused of murder are entitled to due process. Does speaking out against the United States and its Government meet the threshold of abandoning your own constitutional safeguards?

If so, then what will stop our Government from deciding that protesters in the United States who speak out against their country have surrendered their constitutional rights? What about members of the Tea Party movement who are fighting against their government and speak about “watering the tree of liberty with the blood of tyrants”? The current actions of our Government is reminiscent of the Cold War, but the majority of people would have expected these actions from the “other guys.”

We believed in truth, justice, and the American way; and assassination of its own citizens was something the “communists” would do. The United States has entered a dangerous time in our history and we must decide which path we want to take. Do we want to remain on the path where the Constitution is absolute, our rights are inalienable, and justice prevails? Or do we follow the darker path, where justice is achieved without a judge, rights are ignored, and the Constitution cast aside when convenient. And if we follow that path, who will be the next group that gets edited out of our Constitution?

The Worst Part of Censorship Is [This Phrase Has Been Seized by ICE] Ryan Moffitt

Anyone who has been within 100 yards of a television, radio or computer in the last 30 years or so has heard of.com,.net,.org, et cetera. These are top level domains (TLDs) and serve as the first step in pointing your web browser in the direction you want it to go. TLDs are hosted on root domain servers around the world, and serve as the backbone for the internet as we know it today. In a perfect world, these servers would hum along, receiving periodic maintenance and let us surf on our merry little way.

But by this point, you've probably learned that we don't live in a perfect world.

These TLDs have come under attack, and it's not from your usual e-terrorist wielding a zombie botnet army. The U.S Department of Homeland Security has been on the attack, wielding the Immigration and Customs Enforcement Agency (ICE), a $5 billion annual budget and hundreds of special agents trained in intimidation tactics and the latest in technological expertise. The ICE Cyber Crimes Unit has undertaken operations to forcibly remove websites from the.com,.net and.org TLDs for supposed intellectual property violations. Dubbed “Operation Within Our Sites,” ICE never informed the rightful owners of the sites they were being investigated, and the operators of the sites did not find out about the seizure until they discovered it themselves. When they contacted their webspace provider, they were simply given the name and number of an ICE Special Agent, who refused to comment on ongoing investigations. As of the publishing date of this book, Within Our Sites has seized at least 90 known websites and has severely interrupted service for 82,000 others in various technical foul-ups and miscommunications.

Now this all sounds fairly terrible, doesn't it? Big Brother stepping over free speech and all that again, right? Well, here's where it gets a bit more complicated.

Remember those root name servers? Those servers aren't always operated by altruistic organizations who have your best interest in mind. I'll use.com and.net as an example, as the overwhelming majority of websites you navigate to will be in the.com and.net TLD. The root name servers for these two domains are owned and operated by a private corporation called Verisign. As the operator of the largest root name servers in the world, the Department of Homeland Security, the Department of Justice and ICE have put the figurative screws to Verisign. When asked about this development, the US government argues that because Verisign is an American company, it has the unrestricted and unilateral power to shut down entire portions of the.com and.net domains, whether or not the sites are hosted on American servers or owned by American citizens. Through ICE pressure, censorship-friendly judges issued sealed court orders to Verisign, who promptly took down the supposedly infringing sites without so much as a question asked.

It gets worse still.

Verisign, fearing further pressure from not only ICE, but from local and federal law enforcement agencies, and seeking to dodge criticism for taking down domains that had been ruled legal in other localities, filed an astonishing and unprecedented request with the Internet Corporation for Assigned Names and Numbers (ICANN), the organization in charge of assigning IP addresses and managing all of the TLDs in October 2011. This request was for ICANN to allow Verisign to shut off websites in the.com and.net TLDs when simply asked by a law enforcement agency, without requiring so much as a court order, search and seizure warrant or even a phone call from a judge. This power would apply to any website, hosted and/or owned by anyone, anywhere in the world and without any form of due process. The proposed rules, to the surprise of nobody, were crafted with the assistance of US Immigration and Customs Enforcement, the Departments of Justice and Homeland Security and the Federal Bureau of Investigation and proposed by what has now become the puppet organization Verisign.

The justification presented to us by these organizations for warrantless property seizure, in clear violation of the 4^th Amendment has been to “control intellectual property infringement in the digital age.”

That's right, folks. Your constitutional rights are inconvenient to Hollywood. A free society is not conducive to shoving chunks of human culture in a box and setting armed guards in front of it. Hollywood's heavy-weights believe so heavily in censoring the internet, they held a little meeting in May, 2007. The US Chamber of Commerce (a corporate lobbying organization not to be confused with the US Department of Commerce) held a seminar in Stockholm entitled “Sweden – A Safe Haven for Pirates?” The speaker, Johan Schluter of the IP lobbyist group, Danish Anti-Piracy Group gave a speech. In this speech, Mr. Schluter espoused how much he loves child pornography. Why does he love child pornography so much?

Using this logic, intellectual property advocates have successfully played law enforcement agencies and politicians into their hands and have begun their blatant and unashamed attack on basic civil liberties.

What the IP lobbies never counted on was the counterpoint to call them on their nonsense. The Pirate movement is that counterpoint. We believe in building a future we can be proud of, rather than a future that is profitable for a few. The fundamental need for people to share has been a tenant of society since we first started drawing on cave walls. The IP lobby successfully shut down mainstream commercial sharing with Napster and Kazaa, but also succeeded in helping the proliferation of more underground methods of sharing like the Bit-torrent protocol.

People will always find ways to share and communicate, whether it moves to unregulated darknets that pop in and out of existence in hours or we resort back to sneakernet dead-drops. Seizing property without a warrant and trying to extend a single government's jurisdiction around the world only succeeds in infringing on basic civil liberties.

An industry that has to suspend civil liberties to make money is an industry the world needs to be without.

The Parable of the Pasture Howard Denson

This parable is probably a hundred years old, but its meaning is as fresh and significant today as it ever was:

You may supply the moral of the story in language that suits your sense of propriety today.

Back in the 1960s and early 70s, George Wallace repeatedly said that there wasn’t a dime’s worth of difference between the Republicans and the Democrats. Actually back then there probably was a quarter’s difference.

I think it was Richard Neustadt who made the point a few years earlier that, if you take away just a few issues from the Democratic and then Republican members of Congress, you truly would have a very homogenous body of politicians.

In recent years, we have watched as Barack Obama campaigned on change, change, change, and then the Tea Party contingent campaigned on throwing all the rascals out and making real change.

I will argue that, as time goes on, whoever is claiming to advocate change will end up supporting the status quo. The Tea Party members have joined movements that want their elected officials to serve a term – okay, maybe two – and then go home.

Some individuals may (reluctantly?) do their terms and then resign, but it is more common for a transformation to occur as the outsider morphs into an insider. Politician A sees all the good that he or she is doing and decides that it would be best for him or her to run again, by golly, in order to do more good.

We humans always wrap our motives and intentions in the flag or the Bible: “America needs folks like me in Washington. God wants me there to make sure that this stays a Christian country.” We claim we don’t want bribes or the more usual equivalent, campaign donations. We can’t be bought, but, by gum, we do look after folks who think like us. This billion-dollar airplane isn’t needed, the Pentagon doesn’t even want it, but we’ve got to defend America and keep the plants making parts for the good of the country, the state, our district, and (of course, this is not important) our buddies.

We like to look back to the marble days of our country when the Founding Fathers, with halos around their head, complained about King George III, and the tariffs, and the taxes. There’s one problem: We don’t like to think that our forefathers often were driven by profit as much as principle.

As the party system evolved, our forefathers passed sedition laws to shut up the unpatriotic loud-mouths in the other party. First Amendment rights? Not for traitors. They deserve a hanging or at least a good hoss-whipping. We’ll compromise with a good tarring-and-feathering.

When the federal government needed money, the early fathers listened to Alexander Hamilton and established the Second National Bank, run by Nicholas Biddle. All of the government revenue in this young country was concentrated in his bank, and it didn’t take long for this hard-working financier to begin thinking of the revenue as his money.

Unfortunately, he ran afoul of Andy Jackson, who, in retrospect, could have run on the slogan “It’s time for a real psycho for President.” Jackson’s stubbornness helped to derail Biddle’s attempts to blackmail the U.S. and eventually to destroy his house of cards.

Across the pond over a century earlier, England saw a big abuse with its “South Sea Bubble,” a scheme for a company to take on the nation’s debt and then pay it off with special deals. It didn’t work thanks to Graft and its kissing cousins Inefficiency and Ineptitude.

During the Good War of the 20th Century, Americans remembered Pearl Harbor and rallied together. Some sang “Glory Glory Hallelujah” as they envisioned the millions of dollars that Washington was spending throughout the country. Did local contractors do right by their country and give the best deals on building new military bases? Of course, not. They worked on a “cost-plus” system.

The Truman Committee revealed that they were jacking up the prices. Suddenly it was costing twice what they normally charged to build a barracks or a PX. Senator Harry and Bess hopped into their old Dodge and drove to these military sites to see if building materials were actually there, if workers were sawing two-by-fours and installing plumbing or foundations. Truman also looked into the dollar-a-year moguls who were supposedly helping in the war effort. Often they weren’t; instead, they were trashing competitors and trying to use the feds to weaken or destroy employees’ union.

In fact, any time the government has accumulated millions or billions in a special fund, corruption has ensued. Let’s take the case of the Bureau of Indian Affairs (as summarized by the online Monitor.net):

It didn’t.

It may be pointless to argue how much of the BIA revenue was simply stolen. At a minimum, it’s fair to say that it provides an excellent example of robbing Peter to pay Paul; revenue seldom went to the Native Americans but was diverted into the general fund.

That ploy has been used with the Social Security monies, as patriots say it’s a shame to just have that money sit there; let’s use it for things we need now; we’ll even stick in IOU’s each time we take out some cash.

Now fine patriots want to turn over future Social Security monies to the private sector, to the guys and gals who brought us the musical extravaganza “The Big Meltdown of 2008.” Remember the hit songs? “A Shaft for You and a Golden Parachute for Me,” “We’re Too Big to Fail, But You’ll Pay and Say What the Hell,” “A Bonus and a Bail-Out, and Another Bonus for Me.” And the grand finale, “Two, Four, Six, Eight – Let’s All De-regulate.”

All of that, of course, brings up the matter of China. When they were pitching social protestors in jail, it was uncomfortable. Only Hitler, Stalin, and their own Mao would approve of such brutality. By and by, however, we read about their lining up a corrupt businessman or politico against a wall and shooting him. Rough, but perhaps justified.

In our own country, some high-fliers in business have crossed the line from merely being crooks to being traitors to their country and fellow citizens. The late Ken Lay of Enron infamy and Bernie Madoff of Ponzi infamy are two candidates who would not have thrived indefinitely in China.

We have to go back 2,000 years to Ovid to see why the American establishment will tolerate crooks in high places:

And the taxpayers remained in their pastures, patiently chewing their cud and wondering what’s going to happen next.

This essay appeared in its original format on the author's website, http://h owarddenson.webs.com/apps/blog/

Indie Authors Shaking the Pillars of Publishing Reagen Dandridge Desilets

Over the last few years, the publishing world has begun to drastically change. As with the music industry in recent times, people are beginning to no longer need large firms to get published. With the rise of the ebook and print-on-demand services, a writer can now circumvent the traditional system and release their work directly to the public themselves. Indie writers like John Locke, who have sold over 1 million ebooks this year without an agent or publisher, have really begun to raise some eyebrows. There are writers, like Nina Paley, who have had great success publishing without leaning on copyright laws, and, recently, liberty activist and author Tarrin P. Lupo holds the top rated book on Amazon Kindle in the Historical Fiction for his novel, Pirates of Savannah. This kind of success was unheard of until just a few years ago. With all the available resources online for helping authors self-publish, as well as the ability to engage in social networking, these new authors are able to compete with the large publishing firms unlike ever before.

There are a lot of methods to self-publish, but how difficult is it really and what are some of the issues, and risks and rewards of putting oneself out there? There isn’t a right or wrong in this – as mentioned, there are very successful self-published authors and there are others that don’t make it so well. Some issues that can hamper an author are lack of editing, the wrong cover art and improper formatting; however, social and local networking are great ways to find people that have the know-how and skill to help with those concerns. There are several services to choose from to print books as well as services to create all the formats needed to sell ebooks. But, what are some of the unseen obstacles that current and potential self-published authors face on a regular basis? How does it impact the very idea of free press and free speech?

One of the first things that are needed by an author to self-publish is an International Standard Book Number, better known as an ISBN. It’s not required in some cases with ebooks but to maximize your sales and get listed in large name distributors and retailers, an author really does need one. In order to get one, the author has to go to the only company allowed to sell them in the United States, Bowker. I suppose the idea is that it is easier to have one company managing the numbers, but a closer look reveals that, as usual, a monopoly creates a stifling environment that encourages price gouging and poor customer service. Self-publishing authors face expenses that can be very draining, especially in regards to getting one or more skilled editors. However, when the author goes to purchase an ISBN in preparation for publishing, they discover that one single number is $125.00! And to add to that, if the author intends to sell in print and in ebook forms, then they will need two separate numbers for the same title. Granted, the more numbers one can buy at once, the lower the cost of each number, but if someone has a hard time coming up with the money for a single number then the idea of buying in bulk becomes daunting. In the world of self-publishing, one can get ISBNs relatively inexpensively from others that buy in bulk, such as the aforementioned printing and ebook companies online, but they usually restrict how and where you can sell since they are in a sense, the “publisher”. It is possible to find others in the field of self-publishing that have been able to get large numbers of ISBNs in bulk and they are willing to sell at a much reduced rate as well. However, they may or may not have the distributing restrictions that the other companies do. There is a chance that anyone providing ISBNs as the publishing imprint would be held liable for something printed, so they will have the option to, essentially, censor what they choose to allow.

This entire process is draining and discouraging to those that wish to publish and it is not necessary. It is not unreasonable that a free market would agree to use and maintain the option for a standard of numbers to increase sales avenues. An example of this is in the world of computers (please note, it’s not a truly free market, but this is an example of how we can see it work). The personal computer is an open source product that can be built by a manufacturer or by someone with the know how in their own home. It can be loaded with software built by a variety of companies and it can also be run on open source operating systems with the ability for the user to change the code and republish for use by others. The other option is the Mac, which is severely closed source and leaves the user with little options for variety and customization. Mac does a good job making up for it, but in the end, it’s not enough. There are rises in compatible software so that a basic “standard” can be more easily achieved, improving their own chances on the market.

So why isn’t there another option to purchase ISBNs? Because the government granted the monopoly. Clearly, this presents a problem with the idea of “freedom of the press” and indeed, “freedom of speech” as well. Perhaps, with the emergence of a large number of self-publishing authors, it would be best if the government stepped aside and allowed the market to regulate itself. This would help loosen the burden on potential authors and publishers and allow this avenue to be more open and available.

There are other things for the self-published author to consider as well and that is the idea of “intellectual property.” The common theme is that the author retains all rights (and illustrator and commentators if such is included in the book). There are some real questions about whether or not intellectual property laws really protect the authors, artists, musicians, etc. A common question is “ Did William Shakespeare suffer any income loss without the protection of intellectual property and copyright laws? ” Since we are still reading and creating with the use of his works centuries later, it would appear not. Would he want the use and adaptation of his works reduced for the idea of gaining permission from a publishing agent or company first? Well, that answer can’t be known but it is hard to imagine he would have wanted his works contained and restricted.

Another example for modern times is the cancellation of the series Firefly. The original network, FOX, aired it poorly and it wasn’t received very well as a result. However, the show’s creator, artists, actors and writers didn’t give up, and soon after, the movie Serenity was released. The ‘franchise’ continues to grow, more than half a decade later on the steam of fans, unwilling to let such a good idea die with FOX’s refusal to release or sell rights to it. How is FOX protecting those that put in their blood, sweat, and tears by doing this? They aren’t. Plain and simple.

So what are some other options that authors can take if they so choose? Here are some ideas:

Creative Commons – CC is a comfortable jumping board for most people wanting to get away from the stifling world of copyright laws. The author/artist can better control how their work is shared and it is legit in the eyes of the law. See more at http://creativecommons.org/

Copyleft – Copyleft is a broad term used to describe anything but copyright.

Copyheart – Copyheart is one way you can label your work to show love and appreciation. See more at http://copyheart.org/

Anti-copyright – Anti-copyright fully embraces the notion that ideas themselves cannot be owned. It is NOT permission to plagiarize (to understand the difference, please see http://blog.ninapaley.com/2011/06/27/credit-is-due/). For more information and a complete definition of Anti-copyright, see http://anticopyright.com/

Why would any of this matter in a society where established publishing firms go to great lengths to get well written, edited and printed material on the market? Why wouldn’t it? Ours is a country that believes so much in the importance of free speech that it was the very first amendment to the Constitution of the United States, whose ratification was delayed because it didn’t specifically protect liberties. The very first amendment of the Bill of Rights states:

The Bill of Rights strived to accomplish naming the liberties that were natural-born rights to be protected (as opposed to “rights” only granted by man or paper) and one of the most important was the freedom of speech and press. “Press” refers to the printing press and not only newspapers and journalists. The U.S. Supreme Court’s ruling in Lovell v. City of Griffin, GA, 303 U.S. 444 (1938) agrees that it includes anything published. So, the appearance of a lot of new authors that are self-publishing is a huge boost to the idea of “Freedom of the Press” and very much a boost to the American lifestyle and culture.

In conclusion, authors have a lot more resources available to help them self-publish, even more than is initially seen on the surface. Be open to new avenues and ideas, take a deep breath, and embrace the leap of faith that it can be done!

Breaking the Two Party Two-step Andrew “K'tetch” Norton

The first Tuesday in November is election day. It is a day when people all over the country go out, and exercise democracy. In some countries, the very act of voting is seen as a triumph, something worthwhile to be attained. The US sees it as so important, that several countries have been invaded in the past century for the purposes of restoring democracy, yet the US does not have a functioning democracy itself, instead there is a pseudo-democracy, where only two parties are allowed to participate, much like in the most restrictive countries; China, Algeria, North Korea.

There are several myths about elections and voting, and I'm going to try and dispel them, or at least explain why what seems like such a good theory, doesn't work out in practice. I'm going to focus on US politics, but much of this holds true for other countries using a first-past-the-post (FPTP) system, such as the UK. In addition, I'll use the term “Major Parties” or “Major Party” to collectively describe the Republicans and Democrats. It's not an ideal choice of term, but it is one in common use in state laws across the country when talking about ballot access, to refer to those parties.

There is a never ending stream of partisan rhetoric when it comes to third parties. One of the most common claims is that voting for a 3rd party candidate is 'a wasted vote'. It has led to the rise of tactical voting in the US, where instead of voting for the person they want (if they are not one of the big two parties) we have people voting for the'big 2' representative they dislike least. This was best exemplified in the 2004 US Presidential elections, when people who hated Bush voted for Kerry, and those that hated Kerry voted for Bush. What went completely unnoticed was the third choice in almost every state — that of the Libertarian Party and Michael Badnarik (he was not on the ballot in New Hampshire, or Oklahoma), or for that matter, the Green Party, who were on the ballot in about half the states.

This 'tactical voting' is the waste of a vote. Instead of voting for the person you wish to represent you, you are voting to try and deny someone else from doing so, by supporting the opponent who is believed to be the greatest challenge. This then leads to the two major parties producing candidates who are at odds with each other, to get this dichotomy, and play people into an 'us or them' situation. There is another cost. The elected representatives in Congress are universally distrusted, and often thought of as corrupt. Why? Well, they don't actually represent the views of their constituents. What they represent is the views of the political party of the candidate that was not as disliked as the other. The other result is the rise in negative campaign adverts. Why spend money saying “vote for me, I'm better,” when you can spend the money pointing out how bad your major opponent is, and get the tactical vote as a response. The additional bonus from this method is if you lose, you've got your adverts to say “I told you so,” and if you win you've got very few promises to be held accountable for.All this from tactical voting. What a sham!

There is no reason why they are a waste of time. The main reason they won't win is not because people don't support them, but due to tactical voting (see above) people are too afraid to be on the losing side. In addition, there are other elements to supporting the party that matches your views most closely, even if it's a 3rd party. Aside from winning the election, there are other goals that can be achieved, such as federal funding if the party reached 5% in the previous election. This can be a substantial benefit to many candidates. Major parties are also scared of third parties. In 2004, when the Libertarian party sued the Commission for Presidential Debates (the organization that runs the presidential campaign debates), the Republican party, and the Democratic Party, over being unfairly excluded from the debates (they had a nationally available candidate, and the debate was paid for using state funds, and held in a state venue (Arizona State university for the 3rd debate), the debate could have gone ahead if the two candidates had agreed to allow Badnarik to participate. Both refused. The Presidential Debates are a substantial piece of advertising, rather than actual debate when it excludes significant candidates. Ninety minutes of prime time television and radio is expensive, and when you add in the news coverage and analysis of it, it's a major chunk.

One estimate is that the debates work out to be worth at least $40 million in advertising. That's a substantial sum, and would be more than the total campaign budgets of the minor parties, much less the independents. Of course, $40 million is a drop in the bucket compared to the spending nationally on Major Party candidates, but the desire to control is one that tends to override any mere cost. And costs aresomething the 2010 election has in spades. In 2008, $2.5 billion was spent. For 2010, a mid-term election (which is traditionally less costly than a presidential election year), it's estimated that between $3 billion and $4 billion was spent on campaign advertising, almost certainly focused on the two main parties. On the other side of the fence, minor party candidates are often asked why they even bother. Again, in 2004, at the Libertarian Party Conference, Michael Badnarik addressed this very issue, saying

Escape is, of course, voting for what you believe in, rather than the death of voting against yourself, voting “tactically.”Again, it's down to tactical voting. The perception that 3rd parties won't win, because voting for them is a wasted vote. Because it's a wasted vote, people don't vote for them. Thus they don't win. This validates people's view that they were right not to vote for them. It's a self-fulfilling prophecy. It's one that must be broken, in order to bring some actual democracy to the government.

A lot of times, people will vote a straight ticket. That means that people will vote for every Democrat, or every Republican on the ballot. The theory is that the party represents the voters point of view, and so voting a straight ticket is the best, easiest way to vote their view. It's not that simple though. If it were simply a measure of the party position, then why do we need candidates? Just assign a block vote to the party's national committee chairman. It also completely negates the need for primaries. If the party affiliation is all that's needed, why is a publicly funded primary needed? All the candidates on the primary ballot represent the party, so they should all stand for the same thing.

We all know that candidates differ widely on what they represent, which is why the whole concept of a “straight ticket vote” is so horrific. That people vote for a candidate, for their representation, without looking at the candidates and what they stand for relying instead on a small letter placed next to their name, is insulting to the concepts of democracy, and insulting to the candidates. It trivializes them and means they're nothing more than a mouthpiece. Of course, if candidates wish to just be a mouthpiece for a national chairman, then they're not a good choice as a candidate anyway. The idea of a candidate is to represent their constituents in the government, with a party providing support and guidance and a basic direction. These days, candidates are representing the major parties to the constituents.

There is nothing wrong with voting for candidates of different parties. If the candidate's position matches your views, then you should vote for them irrespective of their party affiliation. The 1992 Eddie Murphy film The Distinguished Gentleman played on this premise, the “dumb voter” syndrome. Instead of a party though, he went for a name, but it's the same principle. Voters went in without knowledge (or care) and just looked for something vaguely familiar, beit a surname, or a party affiliation.

*sigh*

Taken altogether, it's a sad situation, producing terrible results. It's why we need electoral reform, in order to restore a government that focuses on policies, rather than attacking others because of party identification, and trying to prevent new parties entering and participating on an even keel – that would be too democratic, and upset the status quo.

Before you vote, do your homework, check who your candidates are, and what they stand for, and above all else, please, VOTE BASED ON THE CANDIDATES AND WHAT YOU STAND FOR. This is your government you are electing, it's not American Idol, or some other pointless, inconsequential TV show. It's as real, and as serious as it gets. For all that people go on about illegal immigrants, those who were lucky enough to be born citizens, act as a complete disgrace when they abuse the privilege of citizenship.

The real solution would be to adopt proportional representation in some form. It's considered “too complex” for Americans to understand, yet countries like France and Mexico seem to have no problem with it.

And above all else, don't complain about the government you get, if you voted tactically, dismissed candidates because of their party, chose not to vote, or just voted a straight ticket. It's your fault, and the faultof those that acted like you, and has been since this country wasfounded. Next time, use your brain instead — your country will thank you.

It's your vote, make it count!

Fluid Democracy William Sims Bainbridge

Worldwide, Internet-based social computing is creating entirely new political realities (Howard 2011*). In Germany, there is much discussion of Liquid Democracy, innovative forms of representation far more flexible than those we have become accustomed to. The phrase “liquid democracy” belongs to the English language, not the German, and it is not uncommon for one language to borrow from another. Often, word meanings are shifted slightly in the process, as for example some Europeans abbreviate software as soft, because they use quite another word for the meaning of the English word soft. The automatic translation website FreeTranslation.com renders Liquid Democracy into German as Flüssige Demokratie, and Flüssige Demokratie into English as Fluid Democracy. Liquid metaphors are quite common in electronics and computer talk, such as streaming video, electric current, wave. I prefer the term fluid democracy because it makes clear that the fluctuating property of liquids is most salient for the discussion.

This essay is a reconnaissance of the technical means available for revolutionizing the political process, using advanced information technology to develop a new alternative to both representative democracy and direct democracy. In the forms of representative democracy prevalent in post-industrial societies today, all too often the elected representatives become captives of wealthy interest groups, rather than really representing the people, or become frozen into outdated ideological positions. Direct democracy presents the danger that the general public will be deceived about the nature of societal problems, whether by distortions broadcast through mass media or by their own wishful thinking, and make foolish decisions, even impulsively changing course so quickly that no progress is made in any direction. Problems that afflict both extreme forms of system include how to protect the right of minorities, how to incorporate professional expertise in political decision making, and how to find responses to new situations that have yet to be defined for popular opinion.

The point is not to jettison political traditions merely out of fascination with novelty, but to find better ways of satisfying the needs of the public for progressive, responsive government, under conditions of rapid cultural and economic change. It is obvious to everyone that the governments of advanced nations have in fact been functioning poorly, and some kind of major redesign is sorely needed. However, this does not mean that the designers of traditional systems were fools, and in fact there is much to learn from them.

A widely understood example is the difficulty of finding the right balance between stability and rapid response, which, for example, the creators of the national legislatures of the United States basically understood. The House of Representatives is elected every two years, from districts with approximately equal population, and thus responds more directly and more quickly to trends in popular opinion. Senators serve for six years, about a third facing the electorate every two years, but representing geographic areas with unequal populations having their own semi-independent political systems. The point is not that this system is ideal, but that it recognizes the design issue of stability versus rapidity of response. When we develop new Internet systems for achieving what has been called Liquid Democracy, using a very different set of innovative institutions, we still need to face this issue. Thus, one example of a design feature that needs to be built into the new system is a feedback mechanism that carefully speeds up or slows down the rate of change, to achieve a dynamic balance appropriate for the rate of change in external conditions, and for the distance to a social goal that needs to be achieved.

Another example is how to balance privacy with accountability. A classic example is the secret ballot, in which the voters know whom they are voting for, but the politicians do not know how individual citizens voted. In more complex systems, finding the right balance can be a real challenge, for example concerning government employees. How can citizens doing business with the government be assured they are being treated fairly, while respecting a degree of privacy for government employees? How can responsible whistle-blowers call attention to problems without endangering their careers? These questions will become acute as we move toward new political systems, facilitated by modern communication technologies, in which many people are constantly shifting roles, being a common citizen at one point in time, a political leader at a second point in time, and a valued worker carrying a public responsibility at a third point. We cannot establish immutable design principle now for the political systems of the future, but we must constantly consider issues like these as we move forward through a period of innovation and experiment.

A good starting point is the statement by the Liquid Democracy Squad of the Berlin Pirate Party, a group of about two dozen members who discussed the possibilities from September 30, 2009, until March 24, 2010. Their key idea was this:

As conceptualized by the Berlin group, an individual has considerable liberty to determine how he or she would be represented. With respect to tax law, the person may select political Party A as the representative, while for environmental policy selecting Party B. Instead of a party, the person may select another individual. And these decisions can be changed at any time.

It is easy to imagine how this could be handled online. Each person would have a private page inside a password-protected governmental database. It would list some moderate number of areas of government decision making, with the option after each to select registered political parties from a drop-down menu, or to insert the name and unique ID number of another individual person. The database would constantly tabulate support for each party in each topic area, calculating weighting variables to calibrate the relative power of that party to decide the next specific vote in that area. Thus a party’s strength in Parliament would be decided not by how many of its politicians had won seats in the most recent election, but by the momentary fraction of the electorate that had selected it to represent them on the particular issue at hand.

In cases when Voter A delegated to Voter B, there are two possibilities. First, Voter A’s party choice could copy Voter B’s party choice, changing whenever Voter B changed a party selection. Second, if Voter B achieves some threshold number of delegations from other voters, Voter B could become in effect an independent member of Parliament. The balance between party influence in Parliament, versus the influence of individual delegates representing many people but without a party organization, could change over time and across issues. In addition, each voter might have several selection pages in the secure online database, one for local government, one for regional government, one for national government, and ideally even one for world government.

Presumably, each political party, and each unaligned individual delegate, would have a public web page listing positions on the various general issues. It is conceivable that some party or solo delegate might choose to communicate privately, even in secret, with individual voters, and no technical barrier prohibits this. However, democracy generally benefits from broad public discussion, and this system assumes that some kind of public debate has identified what the distinct issue areas are. It is one thing to say that tax policy is logically separate from environmental policy, but when a decision must be made about taxing emissions from a polluting industry, the picture becomes complex.

When it comes time to implement Liquid Democracy, there will be a host of very specific technical questions, including many about the processes used to identify opinion leaders and topic areas. The simple idea just presented of a government database with a private page for each voter is only one of many possible ways to proceed, and a modern political system may require combining several of them. Furthermore, we have not considered yet how a political party would develop its platform, and we should imagine how advanced information technology might manage that difficult process. Without pretending at this early point to know which methods should be used in what combination, we can catalog possible components of a twenty-first century political system based on Internet.

A very large number of information technology methods have been developed recently to support group decision making, and they can be assembled in different ways. Many of them have not generally been presented in political terms, so it will take some imagination even to recognize some of the valuable technological resources available to us. Here we shall consider only three: reputation systems, recommender systems, and online group formation systems.

From a certain perspective, Google is a political entity, ruling world culture by deciding where people will find the information they desire, in terms of the most complex classification system that has ever existed, and a dynamic one at that. It is political because it is based on the equivalent of voting, in the form of links people put on their web pages to other people’s pages. Without getting into details, the Google search engine uses two kinds of data. One is the words written on a web page, and the other is the pattern of links coming to a web page. A key part of the mechanism is the pagerank algorithm — actually a class of algorithms that assign a score to each web page in terms of the links coming to it, adjusted by the ranks of the pages that sent those links (Page et al 1998*; [2]).

For example, consider the English-language Wikipedia page of Pirate Parties International. To find many of the web pages that have links to this particular page, one can enter into Google: “link:en.wikipedia.org/wiki/Pirate_Parties_International.” On October 21, 2011, Google listed 141 such pages, including some belonging to branches of the party, as well as pages in many different languages. Entering “link:www.piratenpartei.de/” turns up fully ten times as many web pages. It is even possible to enter two “link:” URLs, and get a listing of all the pages that link to both of the two target webpages, which can become a metric of how similar those two pages are, in comparison with other pairs of pages that might have more or fewer common in-coming links.

Thus Google page rank is first of all a measure of popularity, but also data that can be used to map web pages in terms of similarity. Of course we should be cautious about using Google as our voting system. Yes, one can easily tabulate the relative numbers of in-coming links for the web pages of politicians, but this is not the same thing as their popularity with voters. Many of the highly ranked pages sending links may belong to ideological organizations, venial corporations, or crazy fanatics who put up many webpages that draw attention for being bizarre, not for being wise. Yet as a technical method akin to a voting system, the Google search engine has been remarkably successful and may have lessons for those who wish to reform the political system in the light of advanced communication technology.

In a sense, Google is a reputation system, and its methods can be adopted to measure the reputations of political leaders, or to cluster them into parties if they have not already organized. The original area in which such network-based techniques were developed was bibliometrics — specifically studying the pattern of literature citations to identify the most influential publications and scientists (Börner 2010*; 2011*). Similar methods are now used in a number of fields, using a range of computational methods, to identify leaders in a network of communication.

A recommender system is a database and statistical analysis engine that recommends future actions to the user — typically what movies to rent or books to buy — based on the user's prior behavior or expressed preferences (Basu et al 1998*; Canny 2002*; Herlocker et al 2004*). These systems are widely used in Internet advertising, in order to customize the sales effort to fit the interests of the audience, but can be developed not only to cluster small issues into coherent political programs, but also even to conduct a form of science-moderated direct voting. The distinction between reputation systems and recommender systems is unclear, and the two share many technical features. But the best way to get the idea across is to look at one of the best-known pure recommender systems, the Netflix movie rating system. [3]

After people rent a movie from Netflix, they are encouraged to rate it on a preference scale from 1 to 5, and their responses are used to determine which movies Netflix will recommend they should rent. Starting in 2006, Netflix held a contest, providing a huge training subset of their data, based on hundreds of thousands of raters, and challenging contestants to devise an algorithm that would best predict customers’ ratings on movies for which the data were not in the training set. I entered the contest, not intending to compete, but to explore how such data might be used to map the styles and ideological orientations of movies. I knew from my earlier research, that people’s preferences were often largely shaped by the visual style of a movie, the leading actors in it, and the year in which it was released — but modulo all these extraneous factors ideology could sometimes be detected (Bainbridge 1992: 470-481*, 2007*).

To illustrate the methods here, I have selected 15 movies that concern artificial intelligence or virtual realities — topics close to fluid democracies in their reliance on information technology for radical social purposes. One consequence is that these films may not differ much from each other in term of ideologies, precisely because they have so much in common. The first methodological challenge is that many respondents rate very few movies, so to get robust results I focused on the 6,551 respondents who had rated at least 10 of the 15, only 110 of whom had rated all 15. They are all diehard sci-fi fans, but if the data concerned politics rather than films, we would be dealing with knowledgeable experts on that very different topic. Table 1 lists the films, the year each was released, the average ratings, and the results of a factor analysis of the data.

Table 1: Fifteen Movies about Advanced Information Technology

Four factors resulted, which may be considered four dimensions of variation across the films, or clusters that group together films with much in common. The number in the four factor columns are loadings, expressing how strongly each film represents the factor. Note the negative loading for 2001 in the last column, implying it has a quality opposite to that of the three other films in the category. The first factor seems to have clear meaning, grouping together very high quality, popular films with considerable intellectual depth. The fact that some clusters of films are hard to interpret suggests we may face a similar difficulty in the realm of politics. Note especially that the factors overlap, which is not common in factor analysis, but could easily be the case in a multi-party political system, in which the platforms of competing parties contained some of the same issues.

In earlier research, I had used the same methods to analyze science-fiction authors, finding not only that four dimensions of variation existed, but that each had extremely clear meaning (Bainbridge 1986*). The first group of authors wrote hard-science fiction very closely connected to physical science and technology, and filled with optimism. The second group wrote new-wave fiction, closer to the social sciences, pessimistic, and critical of contemporary society. The third group wrote a variety of kinds of fantasy that ignore real science and emphasize magic. The fourth group consisted of pioneer writers like Jules Verne and H. G. Wells; indeed the fourth dimension of science fiction is time.

If the units being rated were politicians, some of the factors would be clear, representing central individuals in well-established parties. Some would be more complex, perhaps connecting politicians of whatever party who had an anarchist or isolationist streak. Some factors might be based on race, gender, or geographical area, and a few factors might be quite indeterminate in meaning. But if we had a recommender system for politicians, a person who already liked politicians A, B, and C, could be advised what other politicians that person might like, providing links to their websites so the person can check out their platforms and other writings. If the units being rated were specific political positions, then each factor would represent a reasonably coherent platform of compatible positions.

Especially for local politics, it is important to build into the mix of methods some that enable formation of groups of ordinary citizens to tackle particular problems of interest to them. Massively Multiplayer Online (MMO) games do this all the time, and some have excellent systems for short-term team building. For example, World of Warcraft has a good system for assembling small teams of five players, or even raids as big as 40, linking themselves through a real-time communication system on the basis of a short-term practical goal (Bainbridge 2010*). When there are as many as 40 participants, the system is hierarchical, usually assembling individuals in realtime into 8 sub-groups of 5, with more intense communication among the leaders of these small groups, and from the momentary leadership down to ordinary members. The newer MMO, Rift, has successfully worked out methods to bring together similar numbers of people instantly, in a given local area under sudden attack, even without much communication, or at least exceedingly fluid communication.

Long-duration voluntary groups are also common, often called guilds. A guild called “Science” I created in April 2008 in World of Warcraft to organize the world’s first major scientific conference held inside an MMO, is still in existence three and a half years later (Bohannon 2008*; Bainbridge 2010a*). When I registered the guild inside World of Warcraft, I had the power to name each of a half dozen levels of membership, and use the guild-leader part of the interface to decide what powers each level would have. For example, I let all members above the first level recruit new members to the guild, but only very high-level members could promote someone to a higher rank. After the conference, reasonable discussions with the most active members transferred the leadership from me to a subgroup of them. Structurally, such guilds look like dictatorships or oligarchies, but any group of dissatisfied members can always start their own guild, so the nominal leaders of successful guilds are more like servants than kings, exerting great effort to satisfy the membership.

To outline the contours and establish ubiquity of such guilds, Table 2 provides some data about 3,676 members of the largest such group in the classic MMO, EverQuest II. Called Blackhawks, it is organized into the series of eight membership ranks given in the table. In EverQuest II, as in most MMOs, there is a set system of experience advancement, an objective status ladder based on successful completion of missions inside this virtual world. Currently, the levels of experience run from 1 to 90, but with levels above 80 available only to committed players who have annual subscriptions. The three factions listed have evaluative labels in EverQuest II, but can be thought of as geographic representation districts, because members of the Good faction come from one district of the virtual world; those in the Evil faction come from another, and the Neutrals can come from either district.

Table 2: Members of the Blackhawks Guild in EverQuest II

An extensive literature exists on MMO guilds, and we cannot take the time here to discuss all the findings, or all the tools used by different MMOs to create and support these groups. However, one point deserves emphasis because it links to fluid democracy. The members of Blackhawks are not people but avatars of people. EverQuest II is the only current MMO that makes public which avatars link together through one player, although it does not reveal the real-world identity of the person playing that set of avatars. These 3,676 Blackhawks avatars belong to 1,782 game accounts, for an average of 2.06 virtual representatives per person. The Berlin group imagined that each person could behave almost as multiple persons, with one vote per political issue area. The system of multiple avatars in MMOs, suggests there might be several ways in which voters could become multifaceted, even earning extra votes through investing time and effort in the system.

The Blackhawks website indicates that a single person is Leader of the guild, but this person has nine avatars, three of which have reached level 90. The 40 avatars in the council represent 8 people, only two of which lack level-90 avatars, for an average of 5 avatars each. Captains and Commanders are also considered to be leaders. The 43 captains represent 19 accounts, while the 32 Commanders represent 23 accounts. The guild seems mostly to operate by consensus among the higher ranks, but we could imagine a system in which each top-ranked avatar had a vote, giving some people multiple votes. EverQuest II offers many ways in which an avatar may earn points for the guild to which the avatar belongs, chiefly completing difficult missions inside the virtual world, earning status points with the guild. The system by which Blackhawks promotes people is very well stated on the guild’s website:

As outlined by the Berlin group, Liquid Democracy allows citizens to decide from moment to moment who will represent them on what issues. Earlier we noted that it is important to build into the political system a stabilization adjustment that achieves a favorable balance between rapid change and consistency. One way to do this is to delay the effect of a vote, and let the voter rescind it instantly if the voter changes opinions, or to distribute voting dates across the population, for example letting a person cast new votes annually based on their own birthdays. But as the EverQuest II system suggests, a very different way of stabilizing the system is to award political leaders points for things they achieve for their constituents, and have these points degrade at a slow rate.

Traditional sociology assumed that each viable culture possessed a set of relatively stable values , often described as widely shared goals for social action, supported by systems of norms that constituted institutions (Parsons and Shils 1951*). From this traditional conception, any weakening of the values and norms led to what the French called anomie , but has also been called cultural strain and social pathology (Durkheim 1897*; Merton 1938*; Smelser 1962*). Today this conception seems very naive, both because the conditions of life are changing rapidly, and because different groups in society experience them in radically different ways (Bainbridge 1994*). However, governments require goals, so it is still worthwhile asking what the values of society might be at a given point in time, being ready for the answer that they are varied and changing.

Since the 1930s, public opinion polls have been used to chart general popular sentiments, as well as in very focused efforts to predict or understand particular elections. A more recent example is a battery of questions about government programs incorporated in the General Social Survey (GSS), a long-running questionnaire study of the American public, which I am especially familiar with because I managed funding for it in the mid-1990s and have frequently used the data in my own research. One item from that battery, concerning funding for the space program, is a useful, future-oriented item to consider here.

The GSS is administered by an interviewer in the respondent’s home, and the interviewer would introduce the battery of items thus: “We are faced with many problems in this country, none of which can be solved easily or inexpensively. I'm going to name some of these problems, and for each one I'd like you to tell me whether you think we're spending too much money on it, too little money, or about the right amount.” In 1973, fully 61.4 percent of the 1,430 respondents said too much was being spent on "the space exploration program," while 7.5 said too little was being spent, and 31.1 percent said the right amount was being invested. These results could be compared with other government programs, and with the responses for the space program in other years. In 2010, 37.7 percent felt too much was being spent on the space program, 17.2 percent said too little, and 45.1 percent felt the current investment was about right. Anyone who wants to explore these and any other results from the General Social Survey can do so online. [5]

If these data were the basis of decision-making through direct democracy, the space program would have been shut down in 1973, but would be continued today. It is possible to weight data from the general public, to give some people more influence than others. For example educated people and those who score higher on tests of scientific knowledge favor the space program more. We have already seen how advocates of fluid democracy plan to identify and empower opinion leaders. However, there is a different but highly compatible approach, seeking to identify the general values served by some government program or policy decision, and measure how important those particular values are to the public at large, even if they do not currently understand the specific issue at hand. Then, professional experts would go through a similar but more complex process to decide how to achieve those goals.

I chose the space program as my example, because years ago I did a pilot study to explore some of the methods needed (Bainbridge 1991*). The inspiration was the intense experience of being at NASA’s Jet Propulsion Laboratory at the time of the Challenger space shuttle disaster in 1986, and sharing the horror of all the people there who had dedicated their lives to space exploration. Lacking funding, I was in no position to survey the general public, but the rather knowledgeable students of Harvard University were available to serve as respondents. I administered two very different questionnaires. The first one consisted largely of open-ended questions, where respondents were encouraged to write a number of possible goals for the space program, and 1,007 students did so. Their responses were then typed into a computer, although classification was done manually because today’s natural language clustering programs were not yet available.

The second questionnaire asked respondents to rate each of 125 different possible space goals, which had been derived from the first questionnaire, on a scale saying how good a reason each one was for continuing the space program. Because the data matrix for 125 variables x 125 variables x 894 respondents was too big for the social science statistical software available at the time, I wrote my own clustering program to extract the fundamental values being served by the space program as reflected in how the respondents grouped the items implicitly. For example, military values were distinct from scientific ones, which in turn were distinct from idealistic goals. This pilot study was reported in a book, which is now available online. [6]

This process can be carried out very effectively online today. In 1999, a massive online questionnaire study sponsored by the National Geographic Society, called Survey 2000 (Witte, Amoroso, and Howard 2000*; Bainbridge 2004*), included an open-ended question I developed asking people to write a brief prediction about the year 2100: “ Imagine the future and try to predict how the world will change over the next century. Think about everyday life as well as major changes in so ciety, culture, and technology. ” About 20,000 people responded, and after considerable analysis of their written text, 2,000 formal questionnaire items resulted. I wrote them into a Windows-based computer program that anyone can use to explore their own conceptions of the future, freely available online. [7] In connection with fluid democracy, this study suggests one way in which the general public can be polled to identify issues of concern to them, of course using a variety of open-ended questions appropriate for a range of policy areas, and even larger number of respondents than a mere 20,000.

While it is very important to develop a new political system that can adjust the balance between direct democracy and representative democracy, the decisions of legislatures are only one early stage in political decision making. The study of space goals can illustrate this. Table 3 lists 14 space goals, out of a preliminary list of 49, which clustered together correlationally as revealed by a factor analysis. The data came from a 1977 pilot study of 225 American voters who lived in the Seattle, Washington area, data collected with the able help of Richard Wyckoff who at that time was a graduate student. This was only a pilot study, and the 1986 study was more extensive, yet because it polled voters the 1977 study seems symbolically appropriate to use here. The factor loading for an item represents essentially the correlation between the item and the underlying but unmeasured concept that unites the group, so we can see that the fundamental idea focuses on human colonization of the solar system. The popularity of each item is the percent of voters calling it an extremely good or moderately good reason for supporting the space program.

Table 3: Visionary Space Exploration Goals

From the perspective of a third of a century later, these 14 goals may seem even more fanciful than they did in 1977. Certainly none of them have been achieved, and a recent retrospective on my old study implies that the goals that could have been achieved, given humanity’s technical capabilities, have been achieved, and we completely lack the technology for colonization of the solar system (Bainbridge 2009a*). Many of the goals were relatively unpopular in 1977, but all of them touch on hopes for humanity that many future-oriented, thoughtful people hold. Today, the government of the United States is deadlocked about what the National Aeronautics and Space Administration should achieve beyond the confines of Earth.

I have argued that the funding should go entirely into fundamental research in science and engineering, that will increase our knowledge about the universe and perhaps prepare the way for much more advanced space technologies in future decades, and the manned space program should be halted (Bainbridge 2009b*). However, any politician who advocates this position is likely to lose votes, because many people in the general public like the idea of human spaceflight, but lack the technical understanding to know how little we can accomplish at the present time.

Knowing what segments of the public want does not directly tell us how to give it to them, nor does it help us weigh the costs, against the costs and benefits of other goals the public also desires. The fluid network method described earlier, and already worked out in its general principles by leading thinkers in the worldwide Pirate Party, should be fully successful for many issues, but a second method with which we already have a good deal of experience is also worth considering. Indeed, the best approach may be a flexible mixture of the two methods. The second method I have in mind is peer review used by many scientific publications and science-funding agencies. It may be especially suitable when the public goals present difficult technical challenges that require unusually solid expertise that requires a considerable period of time to establish.

The general public often conceptualizes the political process only in terms of elections and the functioning of legislatures, yet much of the real decision making is done inside government agencies where the processes are obscure by nature and intentionally hidden from public view. Major exceptions to this lack of transparency are many science-funding agencies of technically advanced nations. In particular, the scientific peer review process involves a very large number of experts, who are not government employees but teaching in universities or occasionally working in other technical settings. The use of these methods could be expanded, at the same time that fluid democracy was introduced into the electoral and legislative processes, to make proper use of expert knowledge that is too specialized or complex for the general public to understand.

Here is one of the ways a contemporary science agency can manage the peer review process (Bainbridge 2011*). I will describe it in somewhat idealized terms, and not all of the features exist in any particular case; however all of these features are common.

In the course of human scientific development, new areas open up, and a sense develops in the relevant scientific community that funding should be devoted to research in one or another of them. In a somewhat chaotic process, individuals and small groups of colleagues may write white papers , outlining the potential of a new area. A science funding agency may then fund a series of small workshops, or even a major conference, to work out a scientific agenda for the early stages of exploration of the area. If the output of all this communication is promising, a new funding initiative is announced, with funds devoted to it either from several related existing programs or from a central fund of the agency. A formal funding announcement of solicitation is posted on the web, with a particular deadline date for submission usually set a few months after the posting to give academic researchers time to write proposals.

The weeks after the submission deadline are an exciting and very demanding time for the employees of the science agency that posted the solicitations, because they must sort the proposals into categories for the peer review. Strictly speaking, some of the scientists managing the new program are not government employees, because they are university faculty who have come on detail for a period of time, often two or three years, and will return to their universities when their tour of duty has finished. These rotators exemplify a different form of fluid democracy that might be applied more widely in government.

Let’s say that 500 distinct proposals have been submitted. This is far too many to review in one lump, so they are divided into groups on the basis of the expertise required to evaluate them. After much reading and discussion, the program officers might divide them into 20 groups of 25, for example. Each of the 20 groups would be reviewed as a unit by one panel of reviewers, managed by one or two of the program officers. The managers of each panel then recruit reviewers, following some mixture of two different approaches.

It is possible to recruit separate reviewers for each proposal, what are called ad-hoc reviewers. It is also possible to recruit a group of panelists, each of whom would review several proposals. For example, a panel evaluating 25 proposals could have 10 panelists, each reviewing 10 proposals, to provide 4 reviews for each proposal. And of course, the panel could handle fully 50 proposals at this rate of review writing, if half the reviews were of the ad-hoc type. Each written review would have a summary rating of the quality of the proposal, plus text that might follow a template listing the criteria for the particular competition.

Great care is taken to avoid using reviewers who have a conflict of interest on the proposal, and typically nobody submitting to the particular competition can serve as a reviewer or panelist. The proposals and reviews are usually confidential, and everybody involved in the process swears to avoid exploiting any intellectual property that is in the proposals. Depending on the particular science agency, the panel may or may not precisely rank the proposals, but it certainly will separate those that deserve further consideration from those that do not. Again, depending on the rules of the particular agency, the program directors may have a significant role in deciding which of the fundable proposals to move forward for actual funding.

The entire process is Internet-facilitated. In addition to having computerized records of past reviews, the program officers have efficient tools for finding new reviewers, such as checking the rosters of recent conferences in the given area, and of course visiting academic websites. Reviewers and panelists are recruited via email. A special web-based information system handles the submission of proposals, and their distribution to the individuals who will be writing reviews. During a panel meeting, a well-designed groupware system gives panelists access to the proposals and reviews for their particular panel, allowing them to develop a collective written record of their deliberations, and to assign proposals to funding priority categories. A number of agencies have recently experimented with conducting the panel meeting itself online, using videoconferencing or even virtual worlds such as Second Life (Bohannon 2011*).

We do not usually consider the rotators, reviewers, and panelists to be political representatives, because we tend to focus on their technical expertise rather than their values. Yet ideally they do represent the public through their judgment of how to achieve the goals that society seeks. I can imagine expanding this system — with whatever improvements we can devise — for decision-making outside science funding. Questionnaire surveys, recommended systems, and the form of fluid representation suggested by the Berlin committee could establish goals that the society wants to achieve. A fluid peer-review process could then work out the specific means to achieve them.

In ancient times, political power was enforced by clubs and spears, and later emanated from the muzzle of a gun, so it was of necessity tied to a particular territory of land defended by an army. But if humanity can evolve beyond warfare, or at least be assured of peace within wide territorial units, then the ultimate basis of the state need no longer be military in nature. That means that government actions and policies may be developed and applied in a manner more subtle than territorial defense. With the Internet, political constituencies need no longer be defined in terms of geographic districts, but can devolve to the subgroups of humanity most concerned with any issue. Thus it becomes possible to achieve what Bruce Tonn and David Feldman (1995*) called non-spatial government.

There have been examples in the past when governmental jurisdictions overlapped to some degree, depending upon different functions that were performed. Voting districts, school districts, and postal delivery areas often fail to coincide. The Tennessee Valley Authority was created by the United States government in 1933 to serve energy needs and manage resources in an area covering portions of seven states. President Roosevelt conceptualized it as a new kind of organization, “a corporation clothed with the power of government but possessed of the flexibility and initiative of a private enterprise” [8]. However one may judge that particular experiment, which continues to the present day, it suggests that for certain purposes even old-fashioned forms of government could aggregate geographic areas in different ways for different purposes.

Today’s communication technology allows us to escape geographic boundaries altogether, for some public purposes. Just as fluid democracy seeks to assemble people into networks in which temporary opinion leaders may represent constantly fluctuating constituencies, the scope of decision-making and policy application may be geographically different for every topic, and at each historical moment. For some policy issues, quite different systems may coexist in a given area, but serving different constituencies.

A good hypothetical example is marriage laws. In secular societies, marriage is no longer a sacred institution bound by traditional customs, but a kind of contract, and there can be many different versions. Over the course of human history, a wide range of marital practices abounded. Whatever we may personally think of them, many ancient societies had strict rules of exogamy, forbidding marriage within culturally defined segments of society (Levi-Strauss 1969*), others permitted polygamy, and others differed greatly in the rules governing erotic behavior among young people (Malinowsky 1927*). Why should decisions about the legitimacy of different practices be decided by the particular latitude and longitude where the people live?

Given the liberalization of local laws relating to marriage, one could imagine multiple worldwide networks arising, each representing people who wished to follow a particular marital system. In most cases, the network would be of only modest importance in a family’s life, and for other purposes its members would be embedded in quite different networks, including one representing their geographic neighbors. The marriage network would develop the precise standards for the particular kind of marriage contract, might have as a minor adjunct an online dating service, and offer marital counseling and courts appropriate for its particular principles. It would judge cases of marital discord — except the most violent outbursts which might need to be handled locally — and define the remedies for most problems. Only people who had married within the system of a given network would participate in its political processes, but they could live anywhere on the planet.

It is possible that over time many institutions of society would become non-spatial, or at least allowing several alternative, specialized political networks to occupy the same territory. In major cities, there already exist multiple schools systems — secular, religious, public, private, charter — as well as home schooling in the United States for many families. Laws would need to be changed to permit public funding of religious schools, but each system could be funded only by its own constituency, so that nobody was required to pay taxes for a kind of education with which they did not approve. Multiple overlapping school systems would therefore have their own fluid democracy political systems, each designed to satisfy the particular needs of its constituency.

Whether we are really prepared to move toward non-spatial government, the worldwide digital communication network permits it. Marriages and schools may not even be the best examples of institutions ready to evolve beyond the limitations of local geography. Internet provides the world great freedom, along many dimensions of human action and experience, and we will need wisdom greater than any individual can possess, to know which directions to explore first.

The idea that government should regulate intellectual property through copyrights and patents is relatively recent in human history, and the precise details of what intellectual property is protected for how long vary across nations and occasionally change (Bainbridge 2003*). As a scientist, I am offended by the fact that scientists are accorded no legal rights with respect to their discoveries, which may have required intellectual genius and exhausting labor to achieve, whereas an engineer who tinkers up a new device can often patent it, and even rotten authors can copyright their scribblings. There are two standard sociological justifications for patents or copyrights: They reward creators for their labor, and they encourage greater creativity. Both of these are empirical claims that can be tested scientifically and could be false in some realms (Ganz-Brown 1998*; National Research Council 2000*).

Consider music (Bainbridge 2000*). Star performers existed before the 20th century, such as Franz Liszt and Niccolo Paganini, but mass media produced a celebrity system promoting a few stars whose music was not necessarily the best or most diverse. Copyright provides protection for distribution companies and for a few celebrities, thereby helping to support the industry as currently defined, but it may actually harm the majority of performers. This is comparable to Anatole France’s famous irony, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges.” In theory, copyright covers the creations of celebrities and obscurities equally, but only major distribution companies have the resources to defend their property rights in court. In a sense, this is quite fair, because nobody wants to steal unpopular music, but by supporting the property rights of celebrities, copyright strengthens them as a class in contrast to anonymous musicians.

Government deregulation of music — ending copyright — could reduce the advantage of centralized music production over decentralized and diverse music. In a deregulated market, the Internet could help myriads of local and noncommercial musicians find audiences. Arguably, the communication technologies of the twentieth century commercialized culture, but now the Internet may decommercialize it by eroding the power of the distribution corporations.

Internet music file sharing has become a significant factor in the social lives of children, who download bootleg music tracks for their own use and to give as gifts to friends. Thus, on the level of families, ending copyright could be morally as well as economically advantageous. On a much higher level, however, the culture-exporting nations (notably the United States) could stand to lose, although we cannot really predict the net balance of costs and benefits in the absence of proper research. We do not presently have good cross-national data on file sharing or a well-developed theoretical framework to guide research on whether copyright protection supports cultural imperialism versus enhancing the positions of diverse cultures in the global marketplace.

It will not be easy to test such hypotheses, and extensive economic research has not conclusively answered the question of whether the patent system really promotes innovation. We will need many careful, sharp-focus studies of well-formed hypotheses in specific industries and sectors of life. For example, observational and interview research can uncover the factors that really promote cultural innovation among artists of various kinds and determine the actual consequences for children of Internet peer-to-peer file sharing. However, there seems to be little interest on the part of government research-funding agencies to look at politically sensitive issues like this, so while science will be a central part of our future revolution, it is not in a position to fire the first shots.

Quite apart from the economics of music, there are also many questions in the space between governance of creativity and music technology. A half century ago, a very different technology existed that had political implications, namely tape recorders, which I can describe from first-hand knowledge. I obtained my first tape recorder in 1958. This was actually two years later than I obtained my first computer game, the remarkable Geniac.

For several years, I used tape recorders to make personal copies of classical music from New York City FM radio stations, including many European avant-garde concerts that never appeared on commercial recordings. It never occurred to me I was violating anybody’s intellectual property rights. My third and fourth tape recorders were quarter-track stereo machines that could put two hours of high-fidelity monophonic music on a single cheap tape. The radio stations published their schedules well in advance, so it was both fun and easy to make these recordings. There was little incentive to make copies for friends, both because they had different musical tastes, and because copying was more tedious than the original recording, requiring two machines plus a fair amount of labor, and added noise to the recording. Today’s DVDs and online file sharing make copying easier, but also there has been a shift in who copies what kind of music for what purpose. Reel-to-reel tape recorders like the ones I had half a century ago were often used to record live events, and were not a good technology with which to deliver popular music to the masses.

There is the real political dimension in this issue. Music distribution companies, and the mass media in general, exploit people through advertising that uses many tricks to get them to buy culturally inferior products. Teenage children, physically exhausted working class families, and people who are socially isolated from the local musical culture, learn to gobble up the latest recordings by celebrities. In general, we should seek the decommercialization of the arts, even as we seek new ways to reward very large numbers of artists in their local communities.

This brings us back to devolution, and to new technology-based forms of democracy. On the one hand, we can simply abolish copyrights and watch the music distribution industry wither away, as already seems to be happening with respect to magazines and newspapers. Or, we could create such attractive free sources of music, that the masses liberated themselves from their current cultural thralldom, and simply stopped buying recorded music, but gave the money instead to their local singer-songwriter. More likely, several things will happen at once, and a variety of collective decisions will need to be made by governments, guilds of performers, and segments of the general public. The online devolved decision-processes described above will then come in handy for music and the many subcultures within it, as it will for the art arts and many other dimensions of life.

Fluid democracy can be considered a high-tech approach for improving existing government institutions, or it can be considered a revolutionary approach that would entirely replace them. Indeed, one of the adjustment mechanisms that can be built into the new system could be how revolutionary it is in practice. For example, if fluid democracy completely replaces the old system, then all of the financial obligations incurred under the old system become void. If investors see fluid democracy rising in political significance, they would be well advised to sell any government bonds they hold, because these “securities” very well could become worthless if the new system in fact took power. Once fluid democracy was in place, the new system could avoid government debt by allocating funding across government departments in terms of a percentage of tax revenues, rather than as defined dollar amounts. That allocation could be decided annually as voters told the government database what fraction of their own taxes they wanted to go to each department, or which political party they wanted to make that decision for them.

Clearly, we have a long road to travel before fluid democracy can be a reality. In addition to political activism, much research and technology development will be required. A large number of pieces must be assembled to complete the puzzle. Yet it is clear that traditional political structures are failing, so the opportunity for healthy but radical change has now arrived, with the maturity of Internet, at this particular point in human history.

Privatizing Life Kembrew Mcleod

Because of a landmark Supreme Court case and congressional legislation, 1980 was a pivotal year for genetic research. In the Diamond v. Chakrabarty decision, a five-to-four majority ruled that a living, genetically altered microorganism could be patented under U.S. law. Previous to this ruling, it was the policy of the U.S. Patent and Trademark Office (PTO) that living organisms — in the case of Diamond v. Chakrabarty , a bacterium that helped clean oil spills — could not be patented. But the Supreme Court ruled otherwise, stating that “anything under the sun that is made by the hand of man” is patentable subject matter. That same year, Congress passed the Bayh-Dole Act to encourage the commercialization of inventions produced by universities and other recipients of federal funding. An influx of private money poured into university science departments, and since the act’s passing, the private funding of university biomedical research has increased by a factor of 20.

This growth in subsidies provided the legal justification for researchers to exploit human genes. And when I use the word “exploit,” I’m not using it in an ideological way — I'm simply using the terminology of a patent lawyer. During an interview with a New York Times reporter, Todd Dickinson, the former U.S. Patent and Trademark Office’s commissioner, took exception to the idea that patents allow a “government sponsored monopoly,” a phrase he found imprecise. Instead, Commissioner Dickinson corrected the reporter, saying candidly and without irony, “We like to say ‘right to exploit.’ ”Today, private pharmaceutical companies (many of which are partnered with universities) are engaged in a manic — maniacal, even — race to patent every imaginable human gene, protein, and cell line that might be profitable.

The BRCA-1 and BRCA-2 genes are linked to breast cancer and are owned by Myriad Genetics, whose literature reports, “Women with a BRCA mutation have a 33 to 50 percent risk of developing cancer by age 50 and a 56 to 87 percent risk by age 70.”Myriad has a monopoly right over the use of the gene in diagnostic tests or therapies, which means that every time a woman is tested to find out if she carries those mutated genes, a hefty royalty has to be paid to Myriad. Also, if a researcher discovers a therapy that prevents cancerous mutations in these genes, he or she is obligated under the law to secure a license from Myriad, and the company has used its patent to block research on the gene. This is one of the ways that these kinds of gene patents contribute to the skyrocketing costs of drugs and medical care in the United States and throughout the world.

Helena Chaye, like many I’ve spoken with in the business of drugs and science, feels uncomfortable about these kinds of situations. As the director of Business Development at the biotech corporation MediGene, she secures and sells gene patent licenses for the company. Chaye finds herself in an uneasy position. She has both a Ph.D. in molecular genetics and a degree in law, and is intimately familiar with both areas. “From a private company’s perspective,” she tells me, “you want everything to be protected. You want the ability to block other people, and you want the ability to monopolize a certain sector or a certain product and block others from entering, even though you may not be the one [who’s] actually developing it.” For many commercial entities, it simply makes no business sense to put anything in the public domain.

“I personally don’t believe in that,” Chaye says. “From what I do for a living, it’s a struggle, philosophically, that I’m having to patent everything.” She continues: “If genetic sequencing was publicly available for diagnostics, for example, you wouldn’t have to go through Myriad and pay four thousand dollars for a breast cancer test. If that was available to other parties, then you could have somebody else develop it at a much cheaper rate and be available for everyone.” She pauses. “I mean, the flip side of that is they say, ‘Well, we’re not going to be able to develop something so expensive unless there’s some sort of monopoly that protects us in the future.’ But I think there’s a reasonable level at which certain things should be protected, and certain things should be left to the public domain.”

My favorite patent request was submitted by a British waitress and poet who protested the gobbling up of the genetic commons by filing patent application GB0000180.0. She wanted to patent herself.

“It has taken 30 years of hard labor for me to discover and invent myself,” Donna MacLean drily wrote in the application, “and now I wish to protect my invention from unauthorized exploitation, genetic or otherwise. I am new. I have led a private existence and I have not made the invention of myself public.” MacLean added, “I am not obvious.” The provocateur poet didn’t receive her patent, but she made her point.

While many are still happily riding the moneymaking bandwagon, there are a growing number of scientists, medical researchers, and even companies that believe certain gene patents can inhibit research. The chief scientific officer at Bristol-Myers Squibb, Peter Ringrose — hardly a radical anti-capitalist Luddite — said that there were “more than fifty proteins possibly involved in cancer that the company was not working on because the patent holders either would not allow it or were demanding unreasonable royalties.” Dr. Gareth Evans, a consultant in medical genetics, also believes that the economic value of genetic patents make research more secretive and restrictive, and therefore lessens the chances of scientists finding cures.

The hoarding of these kinds of patents threatens to create a “tragedy of the anti-commons,” as Rebecca Eisenberg, a National Institutes of Hea l th-affiliated law professor at the University of Michigan, calls it. The phrase “tragedy of the commons” was coined by Garrett Hardin in his classic essay of the same name, and its primary argument goes like this: If anyone can use common property — a pasture where farm animals can freely graze, for instance — then it can be overused and trashed. While this can happen to physical resources, a patented gene won’t suffer the same fate, but as Eisenberg points out by inverting the phrase, tragedies do occur from fencing off the genetic commons. Yes, it’s true that patent protection provides the financial incentive for companies to invest in research and development, which, in turn, generates many useful drugs and inventions. Patents aren’t inherently bad, but Eisenberg argues that certain patents can be problematic when the protected materials resemble a discovery, rather than an invention.

This kind of patent ownership creates bureaucratic stumbling blocks and economic disincentives that can dissuade laboratories from dealing with certain genes. This was the case with hemochromatosis, a hereditary condition that can cause liver or heart failure (the gene that carries the disorder is found in one in ten people). In 1999 two companies were fighting over the ownership rights of the patented gene connected to hemochromatosis. This created confusion over who owned the patent and to whom medical laboratories should pay licensing fees, helping to shut down research on DNA tests that screened for the condition. Five labs halted testing for hemochromatosis, and twenty-one others decided not to offer the test at all.[1]

Professor Eisenberg argues that the existence of a genetic commons speeds efficiency in medical research because it eliminates the need to track down and negotiate with numerous patent owners.

This point was highlighted in 1999 when ten of the world’s largest drug companies created an alliance with five of the leading gene laboratories. The alliance invested in a two-year plan to uncover and publish three hundred thousand common genetic variations to prevent upstart biotechnology companies from patenting and locking up important genetic information. The companies (including Bayer AG and Bristol-Myers Squibb) wanted the data released into the public domain to ensure that genetic information could be freely accessed and used for research. Its mission undermined the assertion that a genetic commons inevitably leads to commercial suicide and the end of research incentives.[2]

What’s most troubling about thousands of DNA sequences being owned by a handful of companies is the fact that genes are deeply interrelated. For instance, there is no single gene that causes Alzheimer’s disease, which instead results from a variety of environ-mental factors and interactions with other genes. Scientists have mapped much of the human genome, figuring out that there are roughly one hundred thousand pieces of a genetic jigsaw puzzle. But in order to effectively fight diseases with genetic technologies, researchers have to learn how each privately owned gene connects and reacts with the ones around it. Imagine trying to put together a puzzle if you had to buy a random assortment of jigsaw pieces from dozens of companies. You might get frustrated, even give up. When you have to secure multiple licenses from several companies just to begin research, it is all the more difficult for scientists to efficiently and affordably do their job.

“It’s a really big problem if you have to sign lots of agreements,” Eisenberg told New Scientist. “Licenses and material transfer agreements with companies are taking longer to negotiate, so it may take weeks or months.” Similarly, Jeffrey Kahn, director of the University of Minnesota’s Center for Bioethics, cautioned that high licensing fees can hold medical progress hostage. “If you’re a start-up company, you need to have those licenses bagged,” MediGene’s Helena Chaye tells me. “You need them in your back pocket to go and raise money or to entice investors to put more money into it because you’ve got new licensed technologies.” Not having those licenses, she says, “could definitely hinder your operations.”And if you think that many of these companies aren’t aggressively guarding their genes, just listen to Human Genome Sciences CEO William A. Haseltine, who openly stated: “Any company that wants to be in the business of using genes, proteins or antibodies as drugs has a very high probability of running afoul of our patents. From a commercial point of view, they are severely constrained — and far more than they realize.”

Geneticist John Sulston argues in his book, The Common Thread that it seems unlikely “that patent laws combined with untrammeled market forces are going to lead to a resolution that is in the best interests of further research, or of human health and well being.” Advocates of privatization argue that having a commons that anyone can freely draw from will mean the end of creativity and innovation, but the opposite is often true. The way patent law is applied in genetics can limit researchers’ choices, which means the scientific imagination becomes routinized and stifled. There’s little room for the kinds of visionary ideas and accidental discoveries that evolve into real breakthroughs. An argument for the commons — whether it’s the genetic commons or a folk-song commons — is an argument for more creative elbow room.[3] But because of our blind faith in privatization, freedom of expression® has been limited artistically, socially, and scientifically.

I live in Iowa, and I am surrounded by corn, pork, pickup trucks, and, from what I hear, meth labs. Over the past few years, I’ve been inundated by plenty of weird and wonderful stories about farming and rural living. However, one of the most unsettling, science fiction–sounding scenarios I’ve come across is the “Technology Protection System,” or “terminator technology,” as it is known in the press. This technology enables seed companies to genetically alter their patented seeds so that crops become sterile after one planting, turning off life like a light switch. It’s a way of preventing farmers from retaining seeds from the previous year’s crop and replanting them.

Saving and replanting seeds is something we humans have been doing since we stopped being nomadic creatures, but the practice is now illegal with seeds that are patented. The terminator seeds were developed by the U.S.-based Delta and Pine Land, whose president trumpeted, “We expect the new technology to have global implications.” Delta and Pine Land claimed that the terminator seed would be marketed primarily in developing countries to prevent farmers from saving, trading, and/or replanting seeds that are sold by U.S. corporations. Interestingly, the seed industry experienced many aspects of the Napster file-sharing controversy a few years before it hit the music industry.

While there are obvious differences, there are also striking similarities. MP3 music files circulate on the Internet because someone had to purchase a CD, which was then inserted into a computer and “ripped” into digital files. These files can then be exactly duplicated, and copies are made of these copies, then shared. This is also true of privately owned seeds, though the earth (rather than a computer) “reaps” this information without permission. These copied seeds can then be given to other farmers through informal trading systems, delivering them from person to person, a sort of rural peer-to-peer file-sharing network. Even though the seeds are patented, much like music is copyrighted, this can’t stop someone from creating a facsimile of someone else’s intellectual property. This is why the terminator technology was invented.

Sterile seeds may be an inconvenience for American farmers who, for various reasons — including being riddled with debt — want to continue saving seeds. But they may prove devastating for their poorer counterparts in Third World countries who rely on subsistence farming. U.S. Department of Agriculture (USDA) spokesperson Willard Phelps stated that the goal of the terminator technology is “to increase the value of proprietary seed owned by U.S. seed companies and to open new markets in second and Third World countries.” The primary creator of the terminator seed, Melvin J. Oliver, made clear his invention’s purpose to New Scientist: “Our system is a way of self-policing the unauthorized use of American technology,” he asserted, comparing it to copy-protection technologies that prevent the duplication of music. And we wonder why so much of the world hates us.

In mid-1998 Monsanto made an attempt to purchase terminator seed–patent owner Delta and Pine Land. However, this technology met with heated worldwide protests that targeted Monsanto as the next Great Satan, and in early 1999 the company stepped back in “recognition that we need some level of public acceptance to do our business.” Although Monsanto backed out of the merger, Delta and Pine Land, which still holds the terminator-seed patent with the USDA, has continued to develop the technology. Just as in the movies, the Terminator lived on. Delta and Pine Land official Harry Collins stated in January 2000, “We’ve continued right on with work on the Technology Protection System. We never really slowed down. We're on target, moving ahead to commercialize it. We never really backed off.” Since then, more terminator-technology patents have been awarded.

Four-fifths of the sixteen hundred patents issued for genetically modified crops are owned by just thirteen companies, and some of the most significant patents belong to Monsanto. The St. Louis–based operation was founded in 1901 as a chemical company, and it gained notoriety in the 1970s because it was responsible for creating Agent Orange. This chemical compound was used by the military to clear jungles in Vietnam, which led to illness and death in thousands, and the company has also been implicated in several cases of employee and residential contamination. A Monsanto production plant contaminated the Missouri town of Times Beach so much that it had to be evacuated in 1982, and in 2002 Monsanto lost a case against lawyers representing a small Alabama town that had been poisoned as well.[4]

By the mid-1990s Monsanto moved much of its chemical operations to biotechnology, and it is now a global leader in transgenic crops. The contract for Monsanto’s Roundup Ready soybeans allows the company to search a customer’s farmland for signs of saved seeds, and, to nab offenders, the company can track purchase records and check with seed dealers. Among other things, the company has hired Pinkerton detectives — the same private police force hired by the Rockefellers to murderously bust unions in the 1920s — to investigate tips on seed saving. In addition, the company created and advertised the existence of hotlines for neighbors to report farmers who save seeds. “Dial 1–800–ROUNDUP,” said a Monsanto ad. “Tell the rep that you want to report some potential seed law violations or other information. It is important to use ‘land lines’ rather than cellular phones due to the number of people who scan cellular calls.”[5]

Monsanto also developed a kit that determines whether or not a plant was derived from patented seeds by using a principle similar to a pregnancy test, but applied to leaves. Scott Good was one of the many farmers who dealt with the wrath of Monsanto when he saved his seeds and replanted the company’s intellectual property. “They showed up at my door at six o’clock in the morning. They flipped a badge,” said Scott of Monsanto’s agents. “They acted like the FBI. I was scared.” Farmers who infringe on Monsanto’s patents have been fined hundreds of thousands of dollars, and some face bankruptcy. Much like other large seed companies, Monsanto offers incentives for seed distributors to carry their patented seeds rather than public-domain seeds.

A farmer’s choice to plant public-domain seeds becomes increasingly difficult or impossible when near-monopolies exist within the agribusiness industries. Factory farming has flooded the market with low-priced crops, which forces farmers to purchase the patented, high-yield seeds or go out of business. University of Indiana seed geneticist Martha Crouch commented to Science magazine, “Free choice is a nice idea, but it doesn’t seem to operate in the real world.” Although critics have blasted the existence of these so-called Frankenfoods, we should keep in mind that farmers throughout history have manipulated the genetic makeup of crops by selecting for certain favorable traits. Also, these genetically modified crops often grow in more abundant quantities, need less labor, and sometimes require fewer chemical pesticides or herbicides. In other words, there are reasons why North American farmers plant these seeds.

One of the trade-offs, however, is that these patented crops are also uniform in their genetic makeup. This is a problem because when we rely on fewer varieties of food, we increase our chances of exposing ourselves to major food shortages. For instance, the biological cause of the Irish Potato Famine in the mid-1800s was rooted in a reliance on two major varieties of potatoes. the Phytophthorainfestans fungus precipitated the destruction of Ireland’s primary food staple for five years, spreading to the Highlands of Scotland and elsewhere. Although the same blight affected the Andes, because South American farmers preserved hundreds of varieties of potatoes, the effects of the fungus were minimal. In fact, the only reason the Europeans could restock their food supply was that they could draw on varieties of potatoes from the Andean region.[6]

The spread of uniform, patented seeds has accelerated the loss of thousands of varieties of crops. Today, 97 percent of the vegetable varieties sold by commercial seed houses in the United States at the beginning of the century are now extinct, and 86 percent of the fruit varieties have been lost. These numbers are actually quite conservative because there were surely more varieties that weren’t collected in the nineteenth century. Over the twentieth century the varieties of cabbage dropped from 544 to 20; carrots from 287 to 21; cauliflower from 158 to 9; apples from 7,089 to 878. The list goes on. In sum, roughly 75 percent of the genetic diversity of the world’s twenty most important food crops has been lost forever. Because biodiversity is a key factor in the ability of plants to adapt to changing conditions, and humans’ ability to do the same, reduced biodiversity seriously threatens ecological support systems.[7]

Despite skepticism from Europe, the planting of altered (and patented) soybeans, corn, potatoes, and canola in the United States and Canada has exploded, and the market for such crops is expected to grow to as much as $500 billion in the next few decades. The dramatic rise in the growing of patented crops in North America will likely be followed by the same expansion in other countries throughout the world — one way or the other. It’s a biological fact that, once the pollen from genetically modified crops travels through the air, it can pollinate nongenetically modified crops. This invasive pollination has happened to many organic farmers, such as Laura Krouse, based in Iowa. Because of the presence of the Bt gene in her corn, Krouse’s crop can no longer be certified as organic, and she lost half her business in the process.

Why can’t these farmers prevent this contamination? The answer, my friend, is blowing in the wind. “I don’t know if there’s room for a business like mine anymore,” said Krouse. “Biologically, it doesn’t seem like it’s going to be possible because of this sea of genetically engineered pollen that I live in, over which I have no control.”[8] In 1998 Monsanto sued Canadian farmer Percy Schmeiser after the company discovered its patented canola plants growing on his property. The seventy-three-year-old Schmeiser argued that he shouldn’t have to pay Monsanto a licensing fee because the pollen had blown onto his property from neighboring farms. Although Monsanto said this might be the case — in fact, the company acknowledged that Schmeiser never placed an order for its Roundup Ready canola — he was still infringing on their patent.

In a narrow 5-4 decision, Canada’s Supreme Court ruled in favor of Monsanto in 2004, stating that it wasn’t concerned with “blow by” dissemination of patented plants. It simply determined that the farmer “actively cultivated” Monsanto’s property. These patented seeds have also traveled south because the North American Free Trade Agreement (NAFTA) allows five million tons of corn to be sold in Mexico. Many residents of the country, and the Mexican government itself, are up in arms over what they see as an unwelcome invasion of their farmlands. But Dr. Michael Phillips, an executive director at the Biotechnology Industry Organization (BIO), isn’t very sympathetic. “If you’re the government of Mexico, hopefully you’ve learned a lesson here,” he bluntly told NOW with Bill Moyers. The lesson? “It’s very difficult to keep a new technology from, you know, entering your borders — particularly in a biological system.”

Much of the developing world — primarily rain-forest countries — is loaded with what some gene hunters refer to as “green gold.” This refers to medically useful plant materials that can yield massive profits. However, identifying a valuable DNA sequence is a very difficult task, like finding a needle in a mountainous biological haystack. Scientists working for Western companies get around this problem by relying on tribal shamans and medicine men to point them to plants that are medically useful. Using the knowledge developed by indigenous people in developing countries increases by 400-fold a scientist’s ability to locate the plants that have specific medicinal uses. In another estimate, by consulting with the local communities, bioprospectors can increase the success ratio from one in ten thousand samples to one in two in their quest to find active ingredients that can be used in medicines.

For instance, using an active ingredient extracted from an indigenous plant in northeastern Brazil, the U.S.–based MGI Pharma developed a drug to treat symptoms of xerostomia, or “dry-mouth syndrome.” The drug’s development capitalized on the local knowledge about the properties of the jaborandi plant, which literally means — I love this -“slobber-mouth plant.” Knowledge about the plant’s properties had been passed down for generations, but the company did not compensate the native Brazilians in any way. Nor did MGI Pharma have to, even though it was the local knowledge that led the U.S. researchers to the drug discovery in the first place.[9]

Over the centuries, indigenous communities have significantly contributed to the diversity and cultivation of our most basic and important crops. The reason why we can purchase blue corn tortilla chips in stores is because of the centuries of care Mexican farmers gave to cultivating varieties of blue corn (as well as yellow, white, red, speckled, and hundreds of other varieties). This cultivation is a form of labor; that this corn still exists is no mere accident. However, only the knowledge developed in scientific laboratories is protected as patented “property” while the traditional systems are open to plundering because they are communally maintained. This illustrates the double-edged nature of “the commons,” a reason why this concept shouldn’t be blindly celebrated in all situations.

Under the global patent system, intellectual property can only be produced by people in white lab coats employed by companies with huge amounts of capital at their disposal. The time and labor and collective achievements of indigenous farmers are rendered worthless, devalued as being merely “nature.” These kinds of bioprospecting patents — or, as globalization critic Vandana Shiva calls them, biopiracy patents — are built on the fiction of individualistic scientific innovation. This false premise ignores the collective nature of knowledge and denies communities patent protection.[10]

It would be as if someone came along and copyrighted the stories in the Bible. The Old Testament’s narratives were passed down from generation to generation through the oral tradition, preserved by hundreds and thousands of years of active storytelling. Those who set the stories into print certainly had a strong editorial hand, crafting the sentences and ordering the stories in unique ways. But there are still strong echoes of that oral tradition: the use of repetition, mnemonics, formula, and other devices common to oral folk narratives. The written version of the Old Testament simply could not exist without the effort of the communities who passed the stories on. The same is true of useful plants in Third World countries.

Western scientists would have never “discovered” these plants if not for the cultivative labor of indigenous communities over hundreds and thousands of years. Unfortunately, this is not an argument that makes sense in most established theories of economics — so, to paraphrase Woody Guthrie, the poor people lose again. The U.N.’s 1999 Human Development Report pointed out that more than half of the most frequently prescribed drugs throughout the world have been derived from plants, plant genes, or plant extracts from developing countries. These drugs are a standard part of the treatment of lymphatic cancer, glaucoma, leukemia, and various heart conditions, and they account for billions in annual sales.

According to the United Nations Development Project study, developing countries annually lose $5 billion in unpaid royalties from drugs developed from medicinal plants. The United States sees it differently. It calculates that developing countries owe its pharmaceutical companies $2.5 billion for violating their medical patents.[11]

The case of the yellow Mexican bean patent is symbolic of how patents can enable economic colonialism, where resources are drained from developing countries. In the early 1990s, bioprospector Larry Proctor bought a bag of dry beans in Mexico and proceeded to remove the yellow varieties, allowing them to pollinate.

After he had a “uniform and stable population” of yellow beans, his company, POD-NERS, exercised its legal right of monopoly by suing two companies that imported the yellow Mexican beans. The president of Tutuli Produce, Rebecca Gilliland, stated: “In the beginning, I thought it was a joke. How could [Proctor] invent something that Mexicans have been growing for centuries?” POD-NERS demanded a royalty of six cents per pound on the import of these yellow beans, which prompted U.S. customs officials to inspect shipments and take samples of Mexican beans at the border, at an additional cost to Gilliland’s company.

Her company lost customers, as did other companies, which meant that twenty-two thousand Mexican farmers lost 90 percent of their income. The Mexican government challenged the U.S. patent on this bean variety, but the process would be long and costly, running at least two hundred thousand dollars in legal fees. In the meantime, Proctor remained defiant, filing lawsuits against sixteen small bean-seed companies and farmers in Colorado, and he amended the original patent with forty-three new claims. Poorer countries typically don’t have the resources to battle these types of patents, especially when there are more pressing domestic concerns such as clean-water availability and health emergencies.[12] This lack of means to challenge bioprospectors is a real concern for countries targeted by patent-happy multinationals. It’s a problem because the economies of some African countries rely on only one export, and others, on only four or five.

These exports are essentially raw biological materials, and they make up roughly 40 percent of all the world’s processing and production. But once corporate biotechnology reduces active ingredients found in developing countries to their molecular components, the commodity can be manufactured rather than grown. Western multinationals hold a vast amount of patents on naturally occur-ring biological materials found in the Southern Hemisphere. These companies own 79 percent of all utility patents on plants; Northern universities and research institutions control 14 percent; and parties in Third World countries have almost no holdings. In Mexico, for example, in 1996 only 389 patent applications came from Mexican residents, while over 30,000 came from foreign residents. In this way, intellectual-property laws help to exacerbate the unequal distribution of wealth among rich and poor nations.[13]

Although patent law carries with it a Western bias, that doesn’t mean the future is a bleak, foregone conclusion for developing countries. In recent years, these nations and their allies within nongovernmental organizations have lobbied strongly to better protect the resources of countries rich in traditional knowledge and biodiversity. For instance, the World Intellectual Property Organization (WIPO) convened the “Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore” -which met seven times between 2000 and 2004. The committee’s goal is manifold, but with regard to genetic resources it aims to encourage “benefit sharing” agreements between companies and countries rich in valuable biological material.[14]

An example of this is a 1991 deal linked between the pharmaceutical company Merck and the Costa Rican nonprofit Instituto Nacional de Biodiversidad (INBio). The agreement held the potential for Costa Rica to earn more than $100 million annually, money generated from INBio’s 10,000 collected samples of biological material. Although INBio signed more than ten similar contracts with other companies, it should be noted that these kinds of agreements are entirely voluntary and continue to be rare. In fact, Merck ended its association with INBio in 1999, and no royalties had been earned as of 2004. Lorena Guevara, the manager of bioprospecting at INBio, told me that negotiations with companies over the terms of benefit sharing are quite difficult. Still, Guevara remains optimistic,even in the face of forces that are much more powerful than the nonprofit for which she works — or, for that matter, Costa Rica itself.

North American and European countries, and particularly the United States, have led an unrelenting battle to force developing countries to adopt acceptable (to them) intellectual-property systems.

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) has been an instrumental tool that forces member countries of the World Trade Organization (WTO) to adopt standardized intellectual-property laws. The general public in the First and Third World had no say in writing TRIPS. A senior U.S. trade negotiator remarked that, “probably less than fifty people were responsible for TRIPS.”[15] TRIPS forces developing countries to adopt intellectual-property laws that often run counter to their national interests, and if they don’t comply, they’re threatened with economic blackmail in the form of trade retaliations.

Strengthened intellectual-property laws in developing countries decreases the ability of local communities to gain access to technological information (through reverse engineering and other imitative methods). This makes technological catching-up all the more difficult. In this brave new privatized world, the only way to have market power is to innovate. But the only way to innovate is to have lots of capital to invest in the first place, and developing countries only account for 6 percent of global research and development expenditures. As poor nations strengthen their intellectual-property regimes, their markets increasingly are dominated by imported goods, because their local industries can’t compete.

The WTO acts as a policing mechanism that allows countries to bring “unfair competition” charges and other actions against offending countries. For instance, the Bush 2.0 administration has been under pressure from the biotech industry to bring charges against the European Union for its ban against genetically modified food. In a letter to Bush signed by virtually every agribusiness and biotech firm, it claimed that the ban stigmatized biotechnology and “may be negatively affecting the attitudes and actions of other countries.” As if other countries should not dare form their own opinions and policies.

For years, the United States opposed in WTO courts the waiving of patents in countries that have been overwhelmed by AIDS and other deadly diseases, making it illegal for those countries to import generic versions of drugs at a fraction of the cost. Economic studies of Taiwan, China, and India have shown that when patent laws are strengthened, drug prices go up because these countries can no longer manufacture generic drugs. This pattern has been repeated numerous times in poorer countries, where price increases can be devastating. During the 1990s, the Brazilian government was proactive in dealing with AIDS, allowing local pharmaceutical manufacturers to produce low-cost generic HIV therapies. It wrote its patent laws to allow for what’s called compulsory licensing, which legally compels owners to license their patents at a rate regulated by the government.

This approach allowed Brazilian manufacturers to produce Nevirapine — which helps prevent mother-to-child HIV transmission — for an affordable amount. It cost $0.59 U.S. dollars a day to treat each victim, which resulted in a 50 percent drop in AIDS related mortality between 1996 and 1999. As a reward for this achievement, the United States took Brazil to the WTO dispute panel to force the country to undo its liberal patent laws.[16] “The power of the rich countries and of the transnational corporations,” argued John Sulston, “was being used in a bullying and inequitable fashion to achieve ends that benefit them rather than mankind as a whole.”After years of worldwide pressure, the United States granted concessions in the WTO that were largely meaningless, like a provision that allowed countries to manufacture lifesaving drugs with-out penalty. However, most of these African countries had no such pharmaceutical production base, making it impossible for them to legally acquire the drugs.

Years dragged on, millions upon millions died until, in 2001, the United States agreed on a proposal that allows countries to import manufactured generic drugs. But under pressure from the pharmaceutical industry, the Bush 2.0 administration quietly changed its position and sent its trade representative to the WTO to kill the proposal. Much of the world reacted with rage to this shift, and finally in 2003 the United States signed on to an agreement that technically allowed countries with no manufacturing base to import cheap lifesaving drugs. I use the word “technically” because the agreement contains so much red tape that it severely limits the amount of supplies it can import. “Today’s deal was designed to offer comfort to the U.S. and the Western pharmaceutical industry,” said Ellen Hoen of the medical-aid group Doctors Without Borders. She told the Associated Press, “Unfortunately it offers little comfort for poor patients. Global patent rules will continue to drive up the price of medicines.”

I only hope that she is wrong, though given the WTO’s and the pharmaceutical industry’s track record on this issue, I have little faith. The kinds of constraints intellectual-property laws impose on culture may be bad for music and creativity, but in the case of drug patents it’s literally a life-and-death matter. Patent policy is as much a moral issue as it is an economic one, solid proof that property rights trump human rights nine times out of ten. Yes, I realize that these pharmaceutical companies invest millions of dollars in research and development, but there are times when profits alone shouldn’t guide us and empathy and compassion should take over. However, we’re living in a time when, increasingly, money is the only thing that matters.

I’m not claiming that all patents are bad things, because it’s demonstrable that they can encourage investment in the development of products. However, I am arguing for two things. First, there should be some flexibility in the way patent protections are enforced, especially in situations such as the worldwide AIDS crisis. It simply should not have taken ten years for the WTO to adopt halfhearted rules about importing generic drugs, and I believe that those who tried to block it have blood on their hands. Second, there are too many instances when overly broad patents are awarded, which can cause information flow to be slowed and research and innovation to be stunted.

The most shameful detail in all of this is that all developing countries — whether they were the United States and Switzerland in the nineteenth century or Brazil and Thailand in the twentieth century — had very weak patent and copyright laws. Historically, countries left out of the technological-development loop have emphasized the right of their citizens to have free access to foreign inventions and knowledge. The United States in particular had extremely lax intellectual-property laws at the turn of the twentieth century, which allowed it to freely build up its cultural and scientific resources. Also, the United States’ agricultural economy depended on the importation of crops native to other countries because the only major crop native to North America was the sunflower. [17]

Even the music for the U.S. national anthem, “The Star-Spangled Banner,” was swiped from a popular eighteenth-century English song, “To Anacreon in Heaven.” This old drinking song was written by a group of English dandies in the Anacreonic Club, which was devoted to an orgy-loving Greek bard who lived during the 500 b.c.e. era. (Little do people know when they patriotically sing the anthem at sports games that the tune originally celebrated Dionysian explosions of sex and drinking.) In 1812 lyricist Francis Scott Key borrowed the tune, and in 1931 it became the national anthem.[18] Then in 1969, at Woodstock, Jimi Hendrix famously reappropriated the anthem and drenched it in a purple haze of feedback that fit the violent and dissonant Vietnam era. We are a nation of pirates.

Now the United States and other rich countries want strict enforcements of intellectual-property laws that ensure developing countries will remain uncompetitive within the globalized economy. Again, we wonder why much of the world hates us. Defenders of overbroad gene patents, terminator seeds, and global intellectual property treaties argue that without technologies and legal protections that safeguard their investments, there would be no incentive to develop new, innovative products. Companies such as Monsanto (whose comforting motto is “Food -Health -Hope”) insist that their motivations for doing business are grounded in a desire to prevent world hunger. By creating more efficient products, biotech, agribusiness, and pharmaceutical companies can contribute to the betterment of humanity, they say.

However, if you buy that selfless line of reasoning, then I have a genetically altered monkey-boy I want to sell you (all sales final).

This essay originally appeared in the author's book, Freedom of Expression®

Killing The Corporate Person Andrew “K'tetch” Norton

There’s a quip which has become almost a statement of belief in recent years, “I will believe Corporations are people when Texas executes one.” It’s a statement that makes two points. First, Texas executes a lot of people, and has the lowest barrier of doing so, and secondly, that corporations are not people, because they don’t face the same consequences that actual people do.

It captures a key essence in that corporations are people for any positive aspect, but not people for a negative one. If a company does wrong, its board isn’t liable, unless they personally instructed and/or oversaw a criminal act. Instead, just the company is, and it only gets a financial penalty. This is as it should be, because that is the very reason for forming a company.

Let’s take it down to basics. A company, when incorporated, is a limited liability company. That is its entire Raison d'être. It exists only to shield those behind a company from being liable for the company. How? Well, Anne and Bob open a shop. It sells cookers. They open it as a limited liability company, by incorporating. Charles and Denise open a shop next door, at the same time; they have a bed store. They decide not to incorporate.

The businesses run for 6 months and are just about making a profit (not an easy thing to do, since approximately 90% of businesses fail in the first year). They each buy a new delivery vehicle to help expand the business. 6 months after that, and disaster hits. A new superstore opens up just down the road, offering a wider range of both beds, AND cookers, at lower prices. They’ve been undercut and their businesses die. Both stores hang on for a month more, before going bankrupt. However, that’s where the differences start.

Anne and Bob incorporated, so their business is a legal entity. It holds the debt. The store’s lease belongs to the company, as does the loan on the delivery truck, and the money owed to their suppliers for the stock. These creditors can only pursue the company for the money. Anne and Bob’s house, their car, bank accounts, etc. are all safe. All they’ve lost, or put at risk, is what they’ve put into the company.

Charles and Denise aren’t so lucky; their company is only a partnership, which is an agreement between two people, and as such, they are responsible for the debts. Once the van and the stock has been sold off to pay what they owe, they'll have to cover any shortfall out of their own pockets. That means they could lose their house, car, savings, even their own bed, all because they didn’t incorporate.

That’s the benefit of a corporation. It becomes a legal entity that can operate as a party to contracts, including financial ones. The problem is that some people have taken that “legal entity” status, and expanded it, claiming that since people are legal entities, legal entities are therefore people. After all, companies can marry (mergers) split (spin-off), grow, sign contracts, sue, even file taxes (and maybe even pay them); they must be people, and hence we have the term “corporate personhood.”

The problem is, companies are not people. They never have been. If a person dies, that person is dead. They can’t be brought back to life, a corporation can. A person has a fixed lifespan, a company doesn’t (The Japanese hotel company Nisiyama Onsen Keiunkan is over 1300 years old, for instance). If the company breaks the law, does the company go to jail? No. At worst, it would be shut down, and very little stops the people behind that old company from just starting a new company.

The idea that people and corporations are the same thing is clearly ludicrous, and yet that’s not stopped people from trying to make it a reality. Part of the issue in the US stems from US law, which states[1] “In determining the meaning of any Act of Congress, unless the context indicates otherwise-- the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;”

This is extremely broad. The problem is, you can’t put a corporation in jail, or execute it, so “in context,” punishments tend not to apply. Who do you put in jail, how do you punish the company in a way that actually punishes, and while allowing it to continue operating?

Then there’s the impact of corporate personhood on natural persons. In 2010, a 5-4 decision by the US Supreme Court[2] ruled that corporate persons have a first amendment right to advertise freely for candidates and issues. While corporations can’t vote (with some exceptions, such as the election of the Lord Mayor of London), those employed by it can, and the direction taken by it, and the use of the company resources, are at the direction of the board, under nominal control of the shareholders (which are often other companies). The board not only has their own personal 1st amendment rights, and their own personal resources, but they can use the company resources to further their own personal interests.

Other issues are ones of morality, and punishment, exemplified in a document generally referred to as the Ford Pinto Memo. This was a document[3] submitted by the Ford Motor Company, to the National Highway Traffic Safety Administration – a Federal agency – amid concerns over the safety of the Ford Pinto’s fuel tank in a crash. It contained a cost-benefit analysis which laid out the cost of modification to improve the safety of the car (12,500,000 vehicles at $11 a time, for a total of $137.5 million) against the costs of paying out-of-court settlements for accidents (which worked out to $49.53 million). Thus it was cheaper to send out cars that were potentially lethal, and pay out of court settlements. Were ‘natural persons’ (you and me) to attempt to knowingly sell defective products, we would potentially be looking at an involuntary (or criminally negligent) manslaughter charge. A company faces no such charges; but is instead usually charged with liability. The corporate person, quite literally, “gets away with murder.”

Should a person’s job give you two sets of rights, one for you, and one for the company?

Clearly not, as that does not make sense. So what can we do about it?

There are at least three schools of thought on this topic. They can be described as “take the rights,” “adjusted punishments,” and “Corporate Responsibility.”

“Take the rights” is effectively ending corporate personhood as it is now. It can’t be completely done away with, as it still needs the ability to make contracts, and perform acts requiring a legal entity. Instead it specifically narrows down the rights of a corporation. It clearly delineates the boundaries between natural people (those who are Homo sapiens and lawyers) and corporate persons, and the rights they have.

The second is to adjust punishments, so that corporations pay more. Even small companies have balance sheets that dwarf most natural people. So perhaps the model of punishment used in the north-west section of Europe (Finland, Sweden, Denmark, and Germany, among others) better known as Day Fines. These are fines based on income, with formulae to work out the specific person’s fine amount-per-day, with the court sentence given in terms of days (and a minimum fine amount). Applied to a corporation, it would be a major deterrent, while punishing all companies evenly. It also avoids the current situation, where punishments are too low now to affect most corporations, while also being too high for individuals; a classic example being statutory copyright infringement damages. Set between $750 to $150,000 for willful infringement, to many companies that is not a major amount, whereas it’s beyond the ability of most natural people.

The third option is corporate responsibility. In short, the board is directly responsible for the actions of the company, because the company doesn’t have any rights, but instead shares the rights of the board of directors. The company itself has only two “rights,” that of limited liability, and that of being a legal party to contracts. Anything else, including free speech, is down to the board or employees directly responsible.

These are just possibilities, but it’s certainly something that needs to be looked at now, because companies are only getting bigger, and already the 5 biggest companies each have annual revenues bigger than the GDP of all but the top 35 countries (by IMF figures), while the biggest, Wal-Mart, would slot in at number 25, just ahead of Norway, and behind Taiwan at $421 billion/year.

While it might seem an ‘anti-corporate’ stance, the idea of corporations being “people” is not one that should be encouraged. Corporations were created to provide limited liability, and to be a single entity for contract law, nothing more. Ultimately, it comes to the following point: Slavery was about treating people as property, Corporate Personhood is about treating property as a person.

Trying to create artificial people, giving businesses advantages and no disadvantages, means they have disproportionate powers, and the bigger the company, the more power it has, until it’s too big to fail, then we just keep bailing things out, and buckling under the influence. How is that in any way right?

Of course, there is always the Texas standard, mentioned earlier, and not believe Corporate Persons exist until Texas executes one.