Of Regulation and of how to escape it.

PorJeison- Postado em 01 novembro 2012



Lessig's Code and Other Laws of Cyberspace argued how the internet could be regulated. Lessig explained that "Cyberspace" could be regulated through code expressed in market pressure, law, architecture and norms. Darrel Menthe and Marcus Franda tried to explain how traditional jurisdictional theories could be adapted to apply to the internet, and how government could use the same theories that we use today to regulate offences and actions carried out in real space to cyberspace conduct -be it legal or not.
"There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take  the consequences."
-- P.J. O'Rourke 

Lessig's Code and Other Laws of Cyberspace argued how the internet could be regulated. (1) Lessig explained that "Cyberspace" could be regulated through code expressed in market pressure, law, architecture   and norms. Darrel Menthe and Marcus Franda tried to explain how traditional jurisdictional theories could be adapted to apply to the internet, and how government could use the same theories that we use today to regulate offences and actions carried out in real space to cyberspace conduct -be it legal or not. (2)

Unfortunately for us, what these theories have in common is what they don't take into account. To be more precise, these theories are all  focused, and for that matter only take into account, regulation of market law and action that happens within the "Cyberspace" that has any impact on their lives. What do they leave out you may ask? They neglect the fact that there is a whole other "Cyberspace" out there that the US can't regulate, and furthermore, that US industry can't regulate through code either.

The basic theme here is that industry can always escape regulation by going elsewhere, and outside influence can always render internal  regulation useless. One familiar example that may be referred to is the RIAA's  fight to stop P2P sharing. In the end, it won't really matter if Columbia  University Students shared a couple of hundred thousand songs though the any  particular system, if a server established in Tuvalu helps trillions of songs to be swapped all over the world. Basically, a globalized 12-year-old effect that escapes any possibility of either US regulation or RIAA's persecution.

Other examples could be the now permitted patents of software which are useless in other legislations, further, copyrights elapsing before or after the US permitted period, Cybercrime, spam (i.e. penis enlargement pills) and any other you might think of that has the possibility both of "entering" (affecting) the US without any regulation whatsoever and of escaping rights generated within its "real world" borders.

A couple of things might be said about this, the first is that you can't really blame anybody for thinking this way, the perceived idea being that the hegemon is so strong that no possibility exists of escaping its grip. In theory, if any given right has been originated within the hegemon's borders, it should be outside of anybody's reach. The US's jurisdiction should be enough to protect and defend the rights and obligations of its citizens, both within and outside those borders. Consequentially, any fight for "freedom" (i.e. free software, free music, free everything) won or lost here will have its multiplying effects felt outside too. But is this true for the digital world as much as it is for the real one? I would sustain that the answer is no. The fundamental reason for saying this is that,  while in the "real" world there exist the WTO, Border Patrols, Government agencies with reach and finally laws with real possibilities of enforcement, in our alternate space no such thing exists. So, any worthwhile fight that may attain a victory here, might or might not turn out to be worth fighting after all.

Secondly, Anarchists, or rather Cyberanarchists, might say that this is ideally the way to be. After all, people on the net just want to be let alone. (3) They want to rule their own world and they want no governmental influence. But economic interests here are far too great to ignore. The market of eyeballs is too much of a prospective profit machine to "leave alone". Economic interest after all will not rest until they find a way to grasp control over it. The questions then are: Can this be done? Or have we found a loop hole to control, and after all Barlow was right and the net cannot be touched? These are questions that I leave open for now. In  part because it would be premature to answer them, and in part because it would take a whole lot more than 1,000 words to do so.

What I can do, is suggest that issues of Ordre Public like protection of consumers, persecution of cybercrime, privacy, etc, prevent us from laying the issue to rest. If we are to make some sense out of the revolution, the revolution will need to accept that focusing on taking down structures and fighting its encroachment in government, exclusively on one front (The US front) will be detrimental to its final aim.

The effort to achieve this will need to cover all possible fronts (i.e. multinational), and issues of public order will need to be accounted for. You however might argue that such multinational efforts are useless, and would just add one more layer of legislation from the top down. I offer the COE's Convention on Cybercrime as proof to the contrary. (4) The convention has, of course, been implemented in the most integrated portion of our world, but it includes Japan, the US, Canada and South Africa so any argument as to its atypical nature would not be entirely justified.

Am I making sense when the whole aim of the revolution is freedom without concern for regulation from the law? I would be if you can  accept that my proposition is aimed at integrating efforts for it. Even if it's through government participation, the utilization of ALL AVAILABLE LEGAL MEANS to attain it. However you may wish to rebut what is say here, all  I wish to do is raise awareness of what needs to be done, in the hopes to  join those who have helped to do so before me, and also to point out something that others might have recognized but ignored in more simplistic approaches. What will come depends on not ignoring that there is whole other world out there, and that such world might be the source of much mischief if we choose not to observe what happens in it.

Can the net change sovereignty?

So much have I thought about the issue of net governance and its impossibility of regulation that I decided to make myself the opposite question in what would be a part two of my last paper. There I argued that because of the nature of the net the revolution could not be won in one single battlefront and how all different jurisdictions need be attacked to attain its aims. This, along with the issue of electronic elections prompted me to think about whether the existence of an entirely networked society alters the fundamental characteristics of sovereignty? This question strikes at the core of our conception of what the state and sovereignty are, and furthermore, what their function is supposed to be.

Much of the International Relations/International Law literature on the subject of limitation and shrinkage of state power and pervasiveness as an international actor points to networked society as its catalyst. From NGOs acquiring power at international forums and the emergence of individuals as actors in the international plane to the creation of the boomerang effect that organized civil society has in exporting information outside state boundaries and having it return to influence state policy. Some are confident that 50 years from now these practices will take enough decision power away from the state to warrant a fundamental change in the landscape of what today we see as states and the international community. International lawyers have pointed out that issues of prescriptive jurisdiction have also radically been changed as a matter of inapplicability of principles. Others have insisted that constituencies have also radically changed, and we might be more likely to group with people sharing our preferences and ideologies than those that are geographically close to us.

But, is this so? Can the fact that a society has attained disintermediation take away so much from state power that those structures might change as radically as it has been proposed? I’ve asked myself those questions many times and have not been able to come up with a definitive answer. However, from observation I will attempt to point out some facts that might tilt the scale either way.

On the affirmative side, one could say that just as rule of power was prevalent before the rise of government, surely one day chaos will cease to be in the networked society and parallel elected organizations will exist ­as they already do- which could eventually take over the role of sovereigns as we know for peoples with similar concerns and interest, and that if what is needed for that to come about is consent from those constituencies, that would not be difficult to obtain from people that surely would be more willing to give their consent to others that have acquired leadership within their spectrum of preference. Just think about the complicated structures of large NGOs that moreover have amazingly high budgets ­albeit their much earlier creation, they have attained a much greater level of influence after the emergence of the net.

On the negative side there are a much greater number of reasons to assume that this phenomenon is unlikely to come abut any time soon. First, it’s naïve to assume that states, who today have the monopolies of force and delegated power ­and the majority of the switches and pipes of the infrastructure of the net-, would be so easily willing to part from those monopolies. On the flipside, if this change is happening, no matter how much power the state exerts, if those powers themselves are being limited by the structure of the net, eventually there would be no power to be exerted. Second, even though technically speaking, in the net everyone is right next to everyone else, and therefore physical distance is irrelevant, physical aspects of authority as well a mere physical necessities are an undeniable fact. People do not eat bits and bytes, and the production of food ­just to name one example- need be regulated, otherwise, we would be back at the Middle Ages. Third and as a result of such a relation to the physical presence of the state and of human beings, the digital divide plays a major role in the limitation of sovereign powers, as some states can be expected to limit access to information technology precisely in order to hamper any challenge to their structures, and others simply don’t have the resources to plug every single member of their population into the net. For me, a prerequisite for such a change is for everyone to have the capacity to be online, otherwise the fact that some people ­the majority of the world today- does not have that capability, precludes the change.

I do not take a stance on the matter. The issue is certainly not settled. For now, the incentives on both parts would most likely create an equilibrium that takes civil society that much closer to influencing policy because the cost of not paying attention to what their constituencies are saying would be too great for political entities. This is made possible by the formation of an international civil society empowered by the changes in patterns of world communications and the commons. However, just as direct democracy is not a convenient state in the real world, because representative democracy just seems to be that much more efficient, others have stressed the fact that direct democracy and the challenge to state power isn’t likely to be convenient either. Still, we are not sure governments are paying attention and when they do, it has been because the state of affairs on a given matter has reached a point of crisis. Only time will tell, and when it does, it just might be too late for state power structures to react. If they want to survive as they are today, they most certainly would have to prevent, which is probably what they’ve been doing, if they’re smart.


(1) Lessig, Lawrence. Code and Other Law's of Cyberspace. Basic Books, 1999

(2) Franda, Marcus F. Governing the Internet : the emergence of an international regime, Boulder, Colo. :L. Rienner, 2001;  Darrel Menthe, Jurisdiction In Cyberspace: A Theory of International Spaces 4 MICH.TELECOMM.TECH.L.REV. 69 (1998), available at http://www.mttlr.org/volfour/menthe.html

(3) A Declaration of the Independence of Cyberspace. Barlow, John Perry. 
http://www.eff.org/~barlow/Declaration-Final.html, 1996.

(4) ETS 185 - Convention on Cybercrime, 23.XI.2001.


Goldsmith, Jack. Against Cyberanarchy. 65 University of Chicago Law Review 1199
Fall 1998.

Post , David G. Against ‘Against Cyberanarchy.

Moglen, Eben and Karlan, Pamela S. Karlan. The Soul of a New Political Machine: The Online, The Color Line and Electronic Democracy. 34 Loyola of Los Angeles L. Rev. 1089 (2001)

Mathews, Jessica T. Power Shift. Foreign Affairs, New York, Jan/Feb 1997 Vol. 76, Iss 1; p. 50.

Keck, Margaret and Sikkink, Kathryn. Activists Beyond Borders. Cornell Univ. Press. 1998


Editor notes: