Saturday, September 06, 2008

The Pirate Bay: the fine line between publishing and “merely providing” data

A recent controversy illustrates the dual role of The Pirate Bay. When this infamous web site published links to files containing forensic evidence in a well-known Swedish murder case, and the victims asked to have the links removed, the website administrators staunchly refused.
Is this example of making-public controversial data to be seen as the operation of an allegedly “neutral” service provider? Or should we rather see any such operation as a form of publishing (making-public) in and by itself? Especially since The Pirate Bay is a website which does all this within a commercial remit. And more importantly: the site itself actually serves to change public opinion on what material should be publicised or best left untouched...

On the 5th of September 2008 it transpired (TT, 2008) that The Pirate Bay was making public some of the evidence from a well-known murder case in Sweden where the victims had been children. This evidence includes forensic autopsy footage, and the parents had contacted the site, begging the administrators to remove the torrent link to the material. Their request had, according to Swedish TV4 News, ultimately prompted this answer from one of the administrators: ‘You’re bloody nagging. No, no, and again, no’ (my translation). The Pirate Bay decided to keep the links despite protests from the victims’ parents and negative coverage of the whole issue in the established mass media. The site’s press spokesman Peter Sunde motivated their decision thus:
I do not think it is our task to judge whether something is ethical, or what other people want to put up on the net. People should be allowed to express themselves and spread material they think is important, that is one of the things we fight for, and that might surely be used for things which are unpleasant, however it is more important that such a possibility actually exists. (TT, 2008, my translation)
This is not only an assertion from their side to let ‘carrier neutrality’ take precedence over any publicist concerns, it also solidifies their position as a real-term institutional actor in Sweden: The national press ombudsman Yrsa Stenius was pressed to defend the ethical norms of the press in relation to their controversial publication. Such norms are not legally mandatory in Sweden, where almost all documents of public authorities are publicly available; instead they are optional, agreed rules which all publicists adhere to. In refusing this mild self-censorship of traditional publicists, The Pirate Bay’s administrators are asserting that they operate along different axes. Their guidelines, their standpoint implies, are those of the ‘carrier neutrality’ of infrastructural services.
   What they seem to overlook here, however, is that a communications network (in the sense of a telecommunications provider) is not a textual actor, or a producer of discourses. In their split role of providing an infrastructure but also a strategic, normative, sometimes-activist, sometimes-dissenting entity, their active decision that “anything goes” becomes not only a carrier decision but a publicist one as well. It is seen as if they are “making their own rules,” and thus challenging the role of publicists in a mass media climate which is already veering further to the neo-liberal agenda that “anything goes” in terms of press ethics and exploitation of individual fatalities.
   Might it be that the strong technological and historical determinism of The Pirate Bay, engrossed in a rapture of shiny new technical possibilities, blinds them to some considerations which might be inevitable if they want to keep their long-run hold on this strategic advantage? In their dogged determination to publicise almost anything, they seem to forget two things:
   1) That their decision to filter out child pornography already in itself constitutes a self-imposed, and at many times arbitrary choice to adhere to some form of ethical standards. Extending this to forensic footage is not a matter of principle but of degrees of damage limitation.
   2) It might be tempting, as a commercial actor, to publish the most controversial material possible, for sheer “shock value” alone. Yet, the decision to go-ahead with forensic footage of this kind most likely makes for a poor PR strategy: In pressing so strongly for this belief in ‘carrier neutrality,’ are they sure to risk important public support for their overall cause?
[Correction: the actual decision to go-ahead should not be considered a PR-related one, as others have noted. TPB shouldn’t shy away from material just because it is “sensitive” to someone. Instead, the PR aspect belongs to the latter role, that of how TPB as a brand/Internet portal should motivate their carrier neutrality.]
   These are not new questions. The press has always struggled with exactly the same issues in terms of self-censorship. Any good publicist would ask him-/herself whether it is right to publish simply because one can. The trouble for The Pirate Bay is that they will not see themselves as publicists, due to their split role outlined above. They are a communications service and a normative influencer of thoughts, opinions, and beliefs about what digitization actually should entail.

This is a “work in progress” extract from a longer article soon to be published in the Culture Machine journal: Doing it for the good of the net: The Pirate Bay as strategic sovereign.