Pirates in the spectrum: is the right to connect greater than the laws regulating it?

“Alexander the Great sailed in a powerful fleet by the Eritrean Sea to conquer India and before him was brought a pirate, who got caught robbing fishermen. When reprimanded for his action, the fearless pirate responded: ‘Enough sir. That I, because of theft on a barge, am a thief, and you, from robbing of an armed fleet, are emperor?’ So it is... that stealing little is guilt, whereas stealing big is greatness: powerless stealing makes the pirates, whereas powerful stealing, the Alexanders.”

– Sermon of the Good Thief, Priest Antonio Vieira, 1655, Lisbon.

 I started my professional career as an intellectual property lawyer. I believed I could make a positive impact by helping to build an environment where creators could feel protected as well as open for collaboration in order to advance civilisation through the production of knowledge. At law school I also learned that copyrights originated from the UK’s Statute of Anne, where regulations were transferred from private parties to the government and courts, creating effective censorship against public opinion – especially when criticising government.

To my surprise and antiestablishment delight, however, that was also the time when new digital technologies, led by Linux and Napster, began to challenge the rule of law and meaning of justice. It was exciting to see hackers subverting regulations towards democratising access to information, acquisition of knowledge and pushing businesses to innovate on their models to remain relevant.

Unfortunately, the legal system remained on the same wavelength as ever. Instead of hitting my head against a courtroom wall or waiting for it to evolve, I decided to jump over to the more dynamic side of the fence: the communications industry.

Our industry is not necessarily recognised by its ‘do-gooders’, but our power to connect is just as fundamental as the rule of justice when it comes to advancing culture and civilisation. In this sense, the radiofrequency spectrum represents a primary resource enabling devices and people to connect.

In 1985, when I was still learning how to write, suspicious waves began to propagate from the edge of the Tanami Desert in Australia. Those waves were an entirely “unauthorised, unfunded, uncommercial and illegal” (Eric Michaels in the 1994 book Bad Aboriginal Art: Tradition, Media and Technological Horizons) effort of the Warlpiri Aboriginal nation to transmit a TV signal that later on would result in the Warlpiri Media Association (WMA).

The WMA’s purpose was to produce local independent news broadcasts, air Indigenous language educational programming, and channel its voice as a political tool for the community’s benefit. To achieve a ‘media owner’ status, WMA would have had to first obtain licensed access to the radiofrequency spectrum, a fundamental element of wireless communications, which it didn’t. That could be because, at worst, those involved didn’t know they had to or they had the licence application revoked. Or, at best, because they were not able to afford the respective licence fees.

Although human communication systems are made possible by physics and engineering, it is within the realm of public policy that usage is defined and disciplined. As in most democracies, one would assume that more channels on the spectrum must mean more chances to express unique views and diffuse relevant information, and that it must be good. It’s not quite that simple, however.

When the WMA began its transmissions it was considered a pirate because it did not have a broadcast licence from the Australian Government to transmit on the frequency it was using, even though there was available capacity in the spectrum for use. Although air is a common good free for all to enjoy, its usage for the purpose of transmitting wireless messages, commercially or not, is not.

As we advance into the 21st century, the technical, legal and even conceptual conditions for access to the spectrum are fundamentally different. Wi-Fi (an Australian invention) has allowed cheap, high-speed computer-to-computer communication over short distances. Media development activists and entrepreneurs from all over the world have taken advantage of this new technology to building cheap and unlikely communication systems disrupting the state-controlled systems, backing the argument for a policy review.

For example, California’s Tribal Digital Village has been using solar and gasoline generator-powered Wi-Fi since 2001, addressing the lack of internet access for its tribal communities and supporting 86 tribal buildings. Free2Air, the longest existing open Wireless Commons in Europe, patches Wi-Fi networks together with wired telephone lines to extend telephone service to artists’ lofts in London’s East End. The credit for this facility goes to Australian Adam Burns (aka Vortex), who began experimenting with wireless networks as early as 1999 and now, with the help of a laptop named GroundZero and an omnidirectional antenna on a rooftop, has ensured the existence of a friendly data cloud that provides free connectivity for those who couldn’t afford it otherwise.

While these start-ups have potential, the future is not yet theirs to make. Governments are used to imagining telecommunications and the spectrum as a profitable resource. It’s only in a few parts of the world that laws exist to allow free access to the spectrum and, therefore, freedom of information. For the greater majority, piracy still is the only way to connect.

Unless, of course, you are a buccaneer (the professional pirate hired by a nation), and in this case it could be said that the ‘Project Loon’ crew was brave as well as smart enough to step forward and do the ‘dirty work’ governments cannot or will not do. Project Loon is Google’s network of balloons designed to connect people in rural and remote areas. It’s currently being tested to help fill coverage gaps and bring people back online after disasters.

In the midst of Minister for Communications Malcolm Turnbull’s deregulation review, let’s hope more projects promising to help alleviate social problems are included in the agenda. Right now, fee exemption is only given for transmissions on the spectrum involving search and rescue, rural fire-fighting, coastguard, surf life-saving services, ambulance services and qualified amateur radio communications services, for the purpose of assisting another exempt body.

Despite its number two position on the Human Development Index, Australia has gone down two positions on the World Press Freedom Index, ranking 28th, behind Ghana (27) and Uruguay (26). The politics of the spectrum now has a chance to seize new capacity through innovative digital technologies and law permits allowing those who want to bring about meaningful change more licence exemption opportunities. To truly make a positive impact on the communication of health, education, culture and political information, media-based social enterprises need encouragement.

It took almost 20 years for WMA to be legally recognised. Nowadays, it is known as PAW Media and Communications, a not-for-profit organisation incorporated under the Northern Territory Associations Act and one of eight remote Indigenous media organisations (RIMOs) in Australia.

Uber and Airbnb may be the darlings of the ‘shared economy’, but what most of us don’t realise is that they are only touching the surface of what could potentially become a media and cultural connectivity revolution.

Article originally published on the Connect issue of Marketing Magazine