Digital rights defenders gather in Taipei to tackle mass surveillance, online propaganda, authoritarianism

Culled from my notes, here are some of the most interesting things I heard last week in Taipei at RightsCon, the world's leading summit on digital rights for technology, commercial, civil society, and government sectors.

A dragon towers over the 2025 Taiwan Lantern Festival in Taoyuan.
RJ Peltz-Steele CC BY-NC-SA 4.0

Chinese Surveillance Technology

China is methodical in suppressing conversation around the world about the repression of the Uyghur people, according to representatives of the World Uyghur Congress (WUC). Within days of her speaking at the Hudson Institute, WUC Chair Rushan Abbas said, her sister and aunt in China disappeared. Chinese officials sometimes approach venues hosting conferences that will discuss the Uyghurs and offer them double the price to cancel the conference contract, according to Haiyuer Kuerban, director of the WUC Berlin office. Now governments in England and Germany are keen to buy from Chinese firms such as Huawei the very tech that Chinese authorities use to surveil Uyghur activists and their families, Kuerban said, a perverse reward for the facilitation of human rights abuse.

Linjiang night market bustles in Taipei.
RJ Peltz-Steele CC BY-NC-SA 4.0

If you use a China-based media service such as WeChat even outside China, you might be helping the Chinese surveillance apparatus. Open Technology Fund Fellow Pellaeon Lin explained that censors scan files shared online and "fingerprint" them to tailor the blocking of sensitive content from recipients in China. Scanning and fingerprinting happens on Chinese tech even when when users share content wholly outside China. Chinese users, meanwhile, can't penetrate "the great firewall" as easily as in the past, Lin explained. Authorities can see when a VPN is used, if not the content, and that's reason enough to bring someone in for questioning. Tor is better than a VPN because it wraps and disguises internet traffic within innocent transmissions. But Lin warns, it's a game of cat and mouse; the censors are always refining their methods.

Undersea Infrastructure

Remember that all of these panels took place in Taiwan, so criticism of China carried a grave sort of resonance. While discussion of digital rights naturally suggests the metaphysics of cyberspace, the infrastructure of the infosphere exists very much in the real world. One fascinating panel of experts fretted over the vulnerability of the world's undersea cables. Recent outages, such as the cut cable in the Gulf of Finland at Christmas, concerningly exhibit indicia of human agency. Professor Yachi Chiang, of the National Taiwan Ocean University, said, to my surprise, that Taiwan is located at right about the world's highest-density crossroads of undersea traffic. She's right; you can see it at the Submarine Cable Map by TeleGeography:

Submarine Cable Map CC BY-SA 4.0

The security challenges of this network are massive. About 20% of damage results from natural forces, such as deterioration and shark bites, Chiang said; sharks like to bite cables. About 70% of damage is caused by people. A lot of that is inadvertent, anchoring by fishing vessels. But there's no easy way to determine whether there was a malicious act, much less a nation behind it. In the Christmas incident, Finnish officials have alleged a deliberate anchor drag by a Cook Islands-flagged vessel doing Russia's bidding, NPR reported in December.

Taiwan had five incidents already in 2025, Chiang said, with four domestic lines and one international line disrupted. In one incident, the Taiwan Coast Guard took a vessel into custody and detained the crew. That incident was suspicious, because the boat had irregular routing for fishing and inexplicably bore a changeable nameboard. But the capture was exceptional, only possible because the ship was in Taiwanese waters, Chiang explained. On the high seas, ships bear flags of convenience, and any claim against the vessel must be taken up with the flag nation. Those claims in distant and ill developed bureaucracies go nowhere. So some better coordinated legal response is needed to protect the undersea information infrastructure, Chiang concluded.

Authoritarianism in Africa

While the United States retreats to some amalgam of isolationism and opportunism, China is dominating the developing world technologically. China built more than 70% of the 4G network in Africa, Amnesty International's Sikula Oniala said, and now is working on 5G. Chinese-made TVs are flooding the market, Oniala said, but to work, they must be connected to the internet via their Chinese software, raising specters of surveillance and control.

Starlink deployment over
Rhode Island, February 2025.

RJ Peltz-Steele CC BY-NC-SA 4.0

Authoritarian impulses in Africa are ever more complemented by Chinese technology and strategies. Governments control the gateways for internet access; last year, protests were met with internet shutdowns in Kenya, Mozambique, Tanzania, Mauritius and Equatorial Guinea, VOA reported. Amid the civil war in Sudan, both sides have used internet shutdowns strategically, cutting off information about unfriendly protests, permitting access when it undermines the enemy, and charging usurious rates for access to vital information, according to Hussam Mahjoub, co-founder of Sudan Bukra, an independent television channel.

While Starlink seems to promise liberation from government gateways, authorities in countries such as Sudan refuse to license the service and are pressuring the company to limit roaming access for accounts opened abroad, such as in neighboring Kenya, Mahjoub said. Worse, Tor Project Executive Director Isabela Fernandes warned, beware the gift bearer. The Bolsonaro regime in Brazil used Starlink data to track down and kill indigenous activists, she said.

Correspondingly, public access to information (ATI, freedom of information, or FOI) law is on the wane. In Kenya, Uganda, and Zimbabwe, mass surveillance is chilling human rights activism. And governments—even Kenya, the ATI law of which, on paper at least, I praised—are following Chinese examples in ATI law, Oniala said, reducing transparency purportedly in the name of national security.

Data Protection in Africa

Even with the best of intentions, African governments hardly can be expected to stand up to tech giants such as Meta, with turnovers that dwarf nations' GDPs, Open Technology Fund Fellow Tomiwa Ilori said. Speaking to African countries' efforts to establish meaningful enforcement of data protection laws, Ilori analogized: "You only get to kill snakes because they don't move together." In other words, African countries must coordinate their efforts. Franco Giandana Gigena, an Argentine lawyer and policy analyst for Access Now, described a similar dynamic in Latin American countries' inability to resist incentives from the U.S. government and American corporations to look the other way on data protection enforcement.

In the vein of collective action, the African Union Convention on Cyber Security and Personal Data Protection came into force in 2023, upon accession by Mauritania. However, the convention, adopted in 2014, already is dated. Ilori suggested it would benefit from optional protocols on extraterritorial application and stronger enforcement, and overall, African people need more education about their rights.

At that, there might be cultural impediments to EU-style data protection. Thobekile Matimbe, a senior project manager for the Nigeria-based Paradigm Initiative, said that the convention perspective on privacy, while inspired by the EU General Data Protection Regulation (GDPR), is more communitarian than individualist. Curiously, the African perspective, which prizes the integrity of the family, for example, over self-determination or the right to dissent, marks the same ground from which the human right of data protection emerged in the European tradition. The problem, Matimbe explained, is that authoritarians invoke the communitarian perspective to subordinate personal freedoms to the purported imperative of national security. That rationalization has seen surveillance deployed in Malawi, for one example, targeting human rights advocates, critics of government, and journalists, Matimbe said.

Disinformation Regulation

The classical dichotomy between true and false no longer works to balance free expression and disinformation regulation, according to Lutz Güllner, head of the European Economic and Trade Office in Taiwan. As Ukrainian journalist and Public Interest Journalism Lab CEO Nataliya Gumenyuk put it, debunking just isn't working anymore.

The problem, Güllner said, is that disinformation can have truth at its core, but the dis arises in the spin. That's why, he said, the EU's new Digital Services Act (DSA) aims not at content, but at manner of presentation: imposing on Big Tech a responsibility to police platforms for manipulative amplification of speech or suppression of others' speech (for example, planting an item of disinformation in a flood of mundane but accurate news). That isn't to say that the DSA strikes the right balance. Dionysia Peppa, a Greek lawyer and senior policy analyst for Beirut-based SMEX, said that the DSA rule on takedown of illegal content does not define "illegal," devolving authority to member states. In a time of right-leaning elections in Europe, states might disagree sharply over politically charged questions, such as when policy criticism of Israel becomes illegal hate speech.

In a similar vein, Liliana Vitu, chair of the Audiovisual Council of Moldova, talked about the challenges of combatting Russian propaganda in mass media. Banning "primitive propaganda" in "news" and talk shows was easy, she said. The devil lay in entertainment. For example, Russia-originating programs might consistently portray European characters as gay, effeminate, or weak, playing to stereotypes, she explained, while Russian characters appear masculine and strong.

Ukrainian journalists Nataliya Gumenyuk and Angelina Kariakina
talk about The Reckoning Project, which trains conflict journalists
in the preservation of evidence to prosecute war crimes.
RJ Peltz-Steele CC BY-NC-SA 4.0

As mere debunking doesn't work, Gumenyuk described research from The Reckoning Project seeking to figure out how journalists should combat disinformation. Viewers suffer from "compassion fatigue" at all the suffering in the world, she said. So when confronted with fact-based news accounts, such as the appearance of a drowned Syrian boy on a Bodrum beach, or the torture and murder of civilians in Bucha, Ukraine, viewers resisted and complained that journalists are out to manipulate them emotionally. The same viewers, though, proved receptive to people's firsthand accounts in documentaries. Gumenyuk described her astonishment at one study subject's testimony that he trusted the documentary more than the news because journalists were not telling the story. He seemed utterly unaware that the documentary form is a product of journalism and no more or less capable of conveying viewpoint than a news story.

The Reckoning Project, which Gumenyuk co-founded, occupies a compelling position at the junction of journalism and law. Gumenyuk said she tired of seeing reports collected by journalists excluded from war-crime investigations and prosecutions because the journalists did not understand rules of evidence. The Reckoning Project brings together journalists and lawyers to accomplish their complementary missions in seeking truth and justice. Gumenyuk gave as an example the questions a journalist might ask of a witness of atrocities, such as those committed by Russian forces against civilians in Bucha. Ordinarily, a journalist might ask, "How did the Russian soldiers kill this man?" But a leading question yields exclusion of the response as evidence in a legal proceeding. So journalists are trained to ask instead, "Tell me what happened that day."

Apropos of lawyering skills and picking up on the point that tech and its ill-intentioned users evolve faster than law and regulators, Armenian attorney and former head of the Armenian Data Protection Authority Gevorg Hayrapetyan played my tune when he told an audience:

One of the most important disciplines in law is philosophy of law, what law is and what it ought to be. One of the most important steps in developing human rights is recognizing the right.

Data protection, after all, was not a thing until someone thought of it. Maybe that's why it's not a thing in the United States. If we strip black-letter law of theory and policy and dumb down the American law school curriculum to comprise a glorified bar course and skills-training program, then we're headed in the right direction. Right? Asking for a friend.

Time to Save the World

Even were we all so inclined, is there time yet to save the world? Probably not. Law and regulation can't keep up, Güllner said, so the answer has to come from education, to develop people's sensory reflexes to detect disinformation. That will take a generation. "Ask my Ukrainian colleagues," he said. "We don't have that long."

Vitu described complex Moldovan legislation with multi-factor tests to determine whether disinformation conveys falsity and threatens national security. But that took years to develop with civil society stakeholders at the table to protect free expression; propaganda meanwhile grew yet more sophisticated. "Moscow never sleeps," she lamented. 

And Raša Nedeljkov, with the Serbian Center for Research, Transparency and Accountability, summed up the anxiety wracking the world:

A beacon of light for us was U.S. democracy. Now look what is happening.

Maybe that's the silver lining, journalist Tess Bacalla of the Asia Democracy Network suggested: The rest of the world, especially the European Union, will have to step up.

Free Syria regime stands at crossroads

A lone demonstrator outside my local city hall today, in Barrington, Rhode Island, is getting plenty of horn honks for his sign, "Celebrate Free Syria" (photo RJ Peltz-Steele CC BY-NC-SA 4.0).

I do celebrate the fall of the Assad regime. Ghastly, if not unexpected, stories of oppression are pouring out of the country, especially about brutal political imprisonments and torture.

I've not been able to help, though, but wait for the other shoe to drop concerning Hayat Tahrir al-Sham (HTS), the prevailing Islamist rebel regime. Western media are eager to report on the efforts of HTS leader Abu Muhammad al-Jawlani to position himself as a moderate and distance HTS from its al-Qaeda origins. 

The Taliban promised enlightenment, too, when Kabul fell. And now Afghanistan is in an alarming state. The NGO Human Rights Watch declared almost a year ago "that the pattern of abuses against women and girls in Afghanistan amounts to the crime against humanity of gender persecution."

I hope my anxiety is ill founded, and Syria will be different. HTS has a fractured nation to hold on to. Foreign forces, including Americans, are firming up footholds. And Turkey looks poised to invade to suppress the Kurds.

France sent a diplomatic mission to Syria earlier this week, and other western powers should follow suit. The West would do well to impress on al-Jawlani which side of the bread has the butter. The United States has an opportunity, all at once, to further U.S. security, to protect Syrian human rights, to establish a western foothold in a sphere of Russian influence, and to give the Kurdish people a good turn due. 

But how that opportunity will fare as against Trump isolationism remains to be seen. We have an opportunity, too, to throw it all on the pyre and strike the match. And then we really will see what al-Jawlani is made of.

Nigerians pin high hopes on horse-race election

Voters bear PDP flags at a rally in Ilé-Ifè, Osun State, in December.
RJ Peltz-Steele CC BY-NC-SA 4.0

Update, March 1, 2023: Nigerian election authorities declared Bola Tinubu of the incumbent APC party as President-elect. Al Jazeera has data. Obi prevailed in Lagos, Abuja, and a band of southern states including Anambra, but turned in 6.1 million votes to Abubakar's 7 million and Tinubu's 8.8 million, according to official numbers. PDP and Labour vowed legal challenges after an election marred by technical difficulties and incidents of violent voter suppression. The U.S. State Department issued a press release.

Nigerians go to the polls in a landmark presidential election tomorrow, Saturday, February 25.

The election is landmark for many reasons. Nigeria is Africa's most populous nation. Polls show a horse race. The three-way contest with no incumbent offers an outsider option that's especially appealing to young voters. Beset by social and economic crises, Nigeria is perceived as standing at a crossroads from which ways lead either to catastrophic collapse of the rule of law or to sea-change development into continental economic powerhouse. And, unfortunately, Nigerian elections even in the best of times notoriously coincide with violent protest.

The three leading candidates are Atiku Abubakar, Bola Tinubu, and Peter Obi (linked to BBC profiles). I went to Nigeria in December to get the lay of the land.

I visited the Osun-Osogbo Sacred Grove, one of two UNESCO
World Heritage Sites in Nigeria. Regrettably, the other, the
Sukur Cultural Landscape, is not in a safely accessible region.
RJ Peltz-Steele CC BY-NC-SA 4.0

Atiku Abubakar is no stranger to the election process, having run unsuccessfully before against outgoing President Muhammadu Buhari. Abubakar represents the center-right People's Democratic Party (PDP), which was the affiliation of Buhari predecessor Goodluck Jonathan. The PDP tends to conservative economic and social policy, meaning, respectively, deregulation and religious values. The latter is especially significant in Nigeria, because outbreaks of violence and the government's loss of control of northern states are complications principally of religious sectarianism. Both Abubakar and Buhari are Muslim; Jonathan is Christian. Trying to balance the demands of both the Islamic north and the Christian south simultaneously, the PDP has favored deference to regional religious authorities through laissez-faire federalism in social as well as economic policy.

A car in Ilé-Ifè advertises PDP candidates. Ilé-Ifè is a spiritual home of the Yoruba people.
RJ Peltz-Steele CC BY-NC-SA 4.0

At the Central Mosque in Ilorin, Kwara State.
RJ Peltz-Steele CC BY-NC-SA 4.0

Bola Tinubu is the candidate of the All Progressives Congress (APC), the party of Buhari, who also was a military head of state in the 1980s. A millionaire, accountant, and former governor of Lagos, Tinubu is American educated and has past ties to U.S. mega-corporations such as Arthur Anderson, which collapsed after the Enron scandal, and ExxonMobil, specifically, Mobil Nigeria, which bought its way out of the environmental mess of the Niger Delta for $1.3 billion last year. A Muslim, Tinubu hails from southwestern Lagos and Oyo State. To broaden his appeal, he chose a Muslim running mate from the north, though Christian voters are disenchanted with the break from the tradition of a spiritually split ticket. The APC identifies with social-democratic economic policy. A favorite of the populous Yoruba ethnic group, Tinubu boasts of his business acumen, having brought record-breaking foreign investment to Lagos. But his ties to big business and the political establishment cause many, especially younger voters, to eye him warily. As well, kidnapping and violence in Nigeria have reached into even the southwestern states of Oyo and Osun, formerly regarded as safe, surfacing discontent with the incumbent APC's poor record on basic security.

The Nigerian capital of Abuja is developing an arts-tech district,
which I visited in December. The capital was moved in 1991 from
Lagos to Abuja, a planned city at a central geographic location,
selected for practical and symbolic reasons to unite Nigerians
of different ethnic and religious identities.
RJ Peltz-Steele CC BY-NC-SA 4.0

Peter Obi is the wild card. At 61, he's a kind of Nigerian Bernie Sanders for enthusiastic youth fed up with the status quo. He's a Catholic from east of the Niger River, which alienates Muslims in the north, while not necessarily delivering a go-to for Christians in the southwest: an uphill battle. An ethnic Igbo, though, he appeals to another populous ethnic group that feels marginalized by the two parties of the political establishment. In the Nigerian civil war of the 1960s, Igbo nationalists threw in with the secessionist Republic of Biafra, and the Igbo have struggled to reclaim political representation since.

Labour Party logo.
Via Wikipedia (fair use).

Formerly a PDP candidate, Obi in Saturday's election represents the Labour Party, which stands more overtly for social democracy than the APC does. Boasting a logo of a gear encircling people, Labour touts values of social justice and universal economic opportunity. That message strikes a powerful note in a country endowed with a wealth of natural resources, including oil, yet in which almost two-thirds of the population, some 134 million people, live in poverty. Gen Z voters in particular crave change, and they've reclaimed the term "coconut heads," formerly used to disparage perceived laziness, now to signal support for Obi.

Earlier today, I campaigned at one of the largest markets in West Africa, Onitsha Main Market. I also visited the famous Ochanja Market, and the Relief and Mgbuka Markets in Onitsha. -PO pic.twitter.com/qDX8ETEpDE

— Peter Obi (@PeterObi) February 23, 2023

Obi is a former governor of Anambra State, home of the busy river port of Onitsha on the east bank of the Niger. A friend of mine is an Anambra native, American educated in business, and an executive of a manufacturing firm in Onitsha. He's a Christian and Gen X, like me, but, despite his age, you can count him among the coconut heads. (I'm not naming him here for sake of his security. Though he has expressed his views publicly, and support for Obi is widespread in Anambra, we don't know what the future will bring for Nigeria, and there's no need to memorialize online one voter's politics.) He wrote a missive just two days ago that I think well captures the motivation of Obi supporters:

Nigerians have never been able to hold Gen. Buhari to task on any promise made before the 2015 general elections. He has not kept any. The reason is because those promises were made by his campaign spokespersons, aides and APC party officials. Same is repeating itself with Atiku and Tinubu. The two men have been prevaricating on what they would do if elected. In fact, Tinubu has not granted any interview to any Nigerian television/radio stations. He has also avoided every debate for the presidential candidates. He is running away from being held responsible for his words and promises.

In contrary, Peter Obi has attended every debates, townhall meetings and interviews that came up. He has also looked Nigerians straight in the eyes and told them to hold him responsible for his promises. In a television interview yesterday, Ahmed Datti, Mr. Obi's running mate, told Nigerians to fire them if they fail to improve their lives after four years.

The choice is yours. I and my household shall vote Peter Obi's Labour Party for presidency on Saturday, 25th February, 2023.

When I visited Nigeria in late autumn, I hoped to learn more about the social and political situation in the country than I could glean from reading from home. For better or worse, I didn't absorb much that was new. Nigeria's reality on the ground is precisely what it appears to be: a nation that exemplifies "the resource curse," awash with oil yet riddled with poverty; a people flush with potential yet stymied by venal institutions. Insofar as Nigeria's present predicament makes it a bellwether for west and central Africa, more might ride on Saturday's election than even one nation's presidency.

I've long witnessed my friend in Onitsha rail in frustration at Nigeria's inability to combat corruption and climb to its rightful place as a social and economic leader on the world stage. Having been welcomed by people of such a famously boisterous yet warmly embracing national culture, I'm brimming with empathy. Maybe this election at last will show a way forward and upward.

 

Celebrants rally for the PDP in Ilé-Ifè in December. Political parties sometimes pay supporters to turn out, so it can be difficult to gauge true voter fervor on the basis of public demonstration.
RJ Peltz-Steele CC BY-NC-SA 4.0

Peace, power at stake in elections around the world

Pres. Ouattara
(s t CC BY 2.0)

With the U.S. election looming, it's easy to miss crucial elections going on elsewhere in the world, such as Ivory Coast and Moldova, with potential ramifications for global peace.

Votes are being counted now in the Ivory Coast presidential election.  Incumbent Alassane Ouattara is hoping for a third term despite vigorous opposition.  A 78-year-old economist, Ouattara has been president since 2011, after the disputed 2010 election resulted in civil war.  The Ivory Coast constitution limits a president to two terms, but the Ouattara side claims that a constitutional revision in 2016 reset the term clock.

The Sahel
(Munion CC BY-SA 3.0)

An especially sensitive issue in the West African context, the dispute over term limits gives Ouattara's run an uncomfortable overtone of authoritarianism.  Ivory Coast is a key commercial player in West Africa, so stability or instability there ripples throughout the region.  One way or the other, the influence of Ivory Coast's outcome could be especially impactful as Mali, Burkina Faso, Niger, and western Nigeria all struggle to get a grip on lawlessness and violence in the western Sahel.

Frmr. P.M. Sandu
(Accent TV 2015 CC BY 3.0)

Meanwhile, voters are at the polls today in Moldova to choose between starkly different visions for the country's future.  Former socialist party leader Igor Dodon, president since 2016, faces former prime minister Maia Sandu in the country's fourth election since 1991 independence.  Dodon carries the endorsement of Russian President Vladimir Putin and resolves to look eastward for Moldova's future.  Sandu thinks the best hope to pull Moldova out of chronic economic stagnation lies westward, in the European model of development.  

Pres. Dodon
(Russian Pres. Press & Info. Ofc. CC BY 3.0)

I wrote last year about my visit to the "breakaway state" of Transnistria, which embodies the depth of divide over Moldova's future.  Yet so much more is at stake; Moldova stands as a bellwether for the region, indicative of future European or Russian influence.  And with Brexit occurring on Europe's opposite border, the continental union's prospects for eastern growth might speak to the future of the union itself.

Both elections, in Ivory Coast and Moldova, are plagued with reports and denials of poll tampering and improper influence over voters.  And people in both countries fear for the peace in the wake of an outcome favoring any side.

Protestors in Algiers, March 2019
(Khirani Said CC BY-SA 4.0)

Even these elections are not the only ones in the world right now.  The "Georgian Dream" party looks to have won third-term control of Georgia's parliament, lengthening a long-term one-party rule there that opponents say has failed to deliver economic prosperity for working people.  And today, voters in Algeria, where I also visited in 2019, opine on anti-corruption constitutional reforms hoped to quell protests that persisted after the 2019 election of presidential challenger Abdelmadjid Tebboune failed to deliver the prompt changes that the street wanted.

The American election is only one among many in the world this fall in which prosperity and peace might hang in the balance.  I'm hoping that whatever happens here on November 3, we model order and rationality.

Ecuador reexamines repressive comm law, but would keep journalist licensing. Is that so bad?

The struggle between press and government in Ecuador is not new. Protestors
pictured above in 2011 supported a complaint to the Inter-American Human
Rights Commission over press freedom after Rafael Correa, president from
2007 to 2017, brought lawsuits seeking civil and criminal penalties, to the
tune of US$10 million and four years' imprisonment, against journalists
writing about corruption and against the publishing company and directors
of El Universo, a Guayaquil-based daily. More at the Knight Center for
Journalism in the Americas. Photo by Cancillería Ecuador (CC BY-SA 2.0).

A legislative commission in Ecuador is recommending freedom-friendly reform of the country's repressive 2013 communications law, Observacom reports.  But the commission looks to be holding on to one piece of the law: journalist licensing.  While Western human rights advocates regard journalist licensing as a plain infringement of the freedom of expression, the reality is more complicated. Even in the United States, the idea of journalist licensing has been floated as a possible remedy to our "fake news" problem.

Journalist licensing is just what it sounds like.  Some countries require that professional journalists meet certain educational and vocational training requirements, such as a university degree in journalism and periodic continuing education.  A newspaper might publish op-eds and occasional contributions from unlicensed persons.  But regular, bylined writers must be licensed.  A licensing authority oversees the membership and may sanction malpractice, such as fabricated reporting.

The typical Western reaction to this arrangement—my reaction when I first learned of it as an undergraduate journalist in 1990—is horror.  Quasi-public officials with the power to impose sanctions and the benefit of hindsight second-guess the judgment of reporters and editors over questions such as whether a story is appropriately balanced or even newsworthy?  Policing journalism like that is asking for trouble.  How can the Fourth Estate be a zealous watchdog when the watch-ee bites back?

The U.S. Society of Professional Journalists decided in the 1990s that journalistic ethics must be aspirational and non-definitive, rendering ethics guidelines that are fundamentally incompatible with legalistic rules.  Minimize harm, a sort of Hippocratic oath for journalists, became the overriding principle, espoused by academic and practitioner leaders, such as the Poynter Institute's Bob Steele (no relation).

Empowering an enforcement authority over journalism is bound to have a chilling effect on free expression, and worse, to invite control and abuse of media.  There is no doubt that that has happened; licensing has been weaponized infamously by leaders in countries such as Iran and the Philippines.  Media licensing and enforcement authorities are fairly identified by free expression NGOs, such as Observacom, Freedom House, and the Committee to Protect Journalists, as a sign of authoritarianism and a strike against freedom.

In 1985, upon an inquiry by Costa Rica—then the United States' democratic darling in Central America—the Inter-American Court of Human Rights (IACtHR)—then presided over by American judge Thomas Burguenthal, now a law professor emeritus—issued an advisory opinion concluding that journalist licensing is incompatible with the freedom of expression in the Inter-American Convention on Human Rights. (I wrote about this for my university honors thesis.  Go easy on me; I was 22.)

But step back from the problem for a moment and reconsider.  Journalism is important.  It might in fact be essential to democracy.  "[T]he press" is the only private-sector institution mentioned in the U.S. Constitution.  And especially in today's media-obsessed society, "the press" is powerful, shaping the public agenda in a way that it never has before.  Yet anyone can become a journalist, simply by saying so.  Prophylactic media privileges will protect this person from liability, or accountability, even upon publication of defamatory falsehoods, regardless of whether the person claimed journalistic credentials in good faith or published in the public interest.  To wield this power, or to abuse this power, there is no licensing, and there is no enforcement.

Meanwhile, in many American states, we license cosmetologists, interior designers, and real estate agents, and we sanction persons who would hold themselves out as having those competencies if they do not have licenses.  No disrespect to those occupations, but the republic will not fall upon their negligent practice.

Is there not some rational line to be found between licensing as a tool for authoritarian oppression, and licensing as a tool to bolster education and competence for informed democratic participation?

That question was not on my mind when I went to Costa Rica in 1992 to learn more about the colegio de periodistas, the journalism professional organization.  Rather, properly indoctrinated into the ideology of free speech absolutism, I sought only to understand how and why this anachronistic entity could persist—if as a voluntary organization since the IACtHR opinion—in evident juxtaposition with a famously liberal society.  In fact, I hoped to witness its death throes before it disappeared.

The colegio that I found was not what I expected.  Quite to the contrary, there was nothing remotely authoritarian about it.  And it was thriving.  I interviewed reporters, editors, lawyers, and people on the street, and the vast majority favored the colegio, heartily.  Indeed, its journalistic members were its strongest proponents.  They welcomed me as a fellow journalist and invited me to an evening gala with dinner and a speaker at the colegio's headquarters building in San José.  They celebrated their professional association.  When I asked about the incompatibility of journalist licensing with the freedom of expression, they frowned and shook their heads as if they simply did not understand.

The colegio in fact was more like a labor association than a lawyers' bar.  As an organization, the colegio advocated for better wages and employment terms for members, besides sponsoring professional peer dialog, continuing education, and social events.  Members helped and supported one another, professionally and personally.  They all had paid their dues—literally, and in terms of their university degrees and reporting experience—and they were happy to be part of the in crowd.  Colegio journalists were horrified at the idea of a journalistic free-for-all, the ill-informed masses practicing the reporter's craft at the public's risk, just as I had been horrified at the idea of licensing.  The Colegio de Periodistas de Costa Rica was not a public regulatory office, nor a lawyers' bar; it was more like a union and a lot like an academic fraternity.

An excellent 2010 report by journalism professor Steven Strasser, for the Center for International Media Assistance, a project of the National Endowment for Democracy, took a thorough and uncharacteristically evenhanded look at journalist licensing around the world.  While amply expounding the down side of licensing, Strasser wrote too about the up side.  He wrote about the labor angle that I discovered in Costa Rica, observing that publishers, as employers, might be as motivated by commercial self-interest as by idealism when they advocate for the incompatibility of licensing with human rights.

Strasser also observed that journalist licensing is a deliberate feature of sustainable development strategy.  Rwanda, for example, sought to use licensing as leverage to enhance the educational attainment of journalists, and thus indirectly to strengthen democracy with informed public participation.  "Fake news," after all, was in part responsible for the Rwandan genocide.  In Uganda, sensational and false reporting, perpetuating abhorrent stereotypes, has fueled brutal violence against the LGBTQ community.

That licensing might be an antidote to runaway sensationalism and "fake news" has not escaped notice by American legislators.   A Michigan legislator proposed voluntary journalist registration and a licensing board in a 2010 bill.  Membership, as a sort of service mark, would certify the writer as having a journalism or similar university degree, three years' experience, and "good moral character," Michigan Live reported.

Indiana Rep. Jim Lucas proposed journalist licensing in a 2017 bill, somewhat to mock licenses to carry firearms, according to the Indy Star.  Drawing a parallel between the First and Second Amendments, the Indiana bill would fingerprint journalists and exclude those with "felony or domestic battery convictions" from carrying a mighty pen.  Still, on the professionalism point, Lucas tweeted Trumpesquely, "Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!"

Unlike colegio members in Latin America, journalists in the United States have rallied against any talk of licensing.  (See also this 2017 point-counterpoint in Canada.)  And Ecuador is hardly the poster child for licensing's up side.  After the 2013 communication law went into effect, the Correa administration wasted no time in going after editorial cartoonist Xavier "Bonil" Bonilla at the newspaper El Universo for criticizing heavy-handed search and seizure by police as politically motivated.  The "Superintendent of Information and Communication," an office created by the communication law, "accuse[d] Bonil of perverting the truth and promoting social unrest," reported the Knight Center for Journalism in the Americas (source of cartoon, inset, published Dec. 28, 2013).

I doubt that licensing will cure our "fake news" problem.  And I'm not much on licensing in general, more for the burden on economic freedom than the risk to political freedom.  We lawyers demonstrate very well how licensing is an addictive means to economic protectionism, ultimately working at cross-purposes with consumer protection.  Moreover, regarding journalism, licensing would seem to undermine the benefits of (momentarily notwithstanding the problems with) citizen journalism in the internet age.
 
At the same time, I don't think that the licensing of journalists merits a knee-jerk reaction of detestation.  What passes for journalism in America is transforming into something frightening, more akin to the yellow journalism of the 1890s than the Woodward-and-Bernstein reporting of the 1970s.  Was journalism's twentieth-century engagement with professionalism aberrational? a racy flirtation during a midlife crisis for democracy?

Maybe we need more journalists who went to journalism school.

Can somebody please check to see whether we still have any journalism schools?

Let's put democracy out of its misery

Democracy ain’t all that. 

That must be what Reince Priebus has been thinking this year.  The possibility has been on the mind also of author and professor Jason Brennan, of Georgetown University.  Brennan is touring New England this week to talk about his new book, Against Democracy.  I knew of Brennan from one of his earlier works touting my faith, Libertarianism: What Everyone Needs to Know.  This week I had the good fortune to meet him in Providence, thanks to the Rhode Island Federalist Society.  On my commute this morning, I heard that he’ll be on WGBH’s excellent Innovation Hub this week. 

Brennan’s thesis in short is that when we talk about how best to select our leaders in human society, democracy might not be the endpoint and high point of human achievement.  He offered a simple thought experiment:  Imagine a professor instructs students that instead of grading exams on the usual A-F merit system, each person in the class will get the same grade, an average of everyone’s performance.  No surprise, students don’t study and perform poorly.  The incentive for each individual to do well is diminished along with the risk that poor preparation will be reflected in any one person’s grade.

Brennan explains that the same dynamic is at work in democracy.  If any one person’s vote is vastly unlikely to have an impact on the general election, then the individual has only weak, and largely symbolic or emotional, incentives to become informed and vote intelligently.  Surveys of how well informed voters are sadly support this thesis, with voters performing only about as well as chance would predict in answering simple multiple choice questions about politics.

What’s better than democracy?  Brennan isn’t shilling for any model, but provided a compelling and fair tour of the possibilities.  He pointed out for one example that simple gambling—imagine betting on the next President of the United States, if the model could be translated into politics—is a rather good predictor of outcome.  The gambler has skin in the game the way a voter does not, so has a proportionate incentive to be well informed.  Other potential models would jettison one person, one vote in ways that would reward better informed voters with greater influence.  I was reminded of my “oligarchy of the intelligentsia” phase when I studied politics at university.

A model I found enchanting, maybe because of its cool name, is “the Simulated Oracle.”  Imagine that along with a person’s vote, we collect also some basic demographic data and even administer a short quiz on political know-how.  With large enough data sets, we could employ the magic of statistics to control variables and correct for self-serving biases.  Factors such as race and gender, the community I live in, and my wealth can be predicted to evidence self-serving biases in my voting behavior, not necessarily the vote that a more altruistic me might cast.  The Simulated Oracle can control variables and correct for irrational or unfair biases, transforming my vote into a hypothetical ideal, the vote my better self would cast.  Weight everyone’s votes accordingly, and we might get a result that compensates for individual rent-seeking.

The mythology of democracy is emotively powerful in our society today, shaping how we define ourselves and our ideals.  But the U.S. Constitution—in, for examples, life tenure in the Article III courts, a republican representation system, and the original method of selecting senators—was designed to temper the risky excesses of pure democracy.  Moreover, the framers intended the Constitution to be amended.  There is no reason to think that progress means evolution toward pure direct democracy.  Remember Ross Perot suggesting instant home voting on contemporary issues?  Today that sounds like a good way to run Dancing with the Stars, and not so good a way to make foreign policy, tax policy, or really to do anything important.

Rather, we are engaged, or should be engaged, in an ongoing process of perfecting the organization of human society.  It’s not so strange to imagine that democracy as we know it now is just one stop on our journey.

Brennan is awash with fascinating data about the American electorate, and I’ll share just one item.  Turns out that people who self-identify with political third parties, such as libertarianism, are among our most informed voters. 

Am I blushing?