[governance] regulating the digital space - whose laws apply, and whose do not

[Paul Lehto]

On 8/29/11, Daniel Kalchev <daniel at digsys.bg> wrote:
>
>
> On 29.08.11 17:36, Paul Lehto wrote:
>> On 8/29/11, Daniel Kalchev wrote:
>>>>> however imperfect, the current
>>>>> multi-national system of governance works. It regulates more or less
>>>>> global trade, immigration etc. But it does not regulate the Internet.
>>>>> Not because of lack of desire, but because nobody in these
>>>>> 'governmental' structures understands Internet.
>> "Understanding the internet" in some technical or even metaphysical
>> way is definitely *not* a prerequisite to regulation.
>>
> You are correct Paul. Ignorance is not Internet-specific attribute.
>
> However "Internet" -- not the collection of wires -- is different in
> that it is very new as a concept to regulators.



> During this lack of interest by democratically (or otherwise) elected
> Governments to govern (but also encourage) Internet development, it had
> to exist and grow somehow. Various forms of self-regulation or other
> form of governance emerged. Like it or not, Internet does develop and
> grow without apparent Government regulation and "laws".

This is not really true.  As several of my past posts have
established, without any contradiction on this particular point, the
internet presently (and in the past) relies upon many governmental
laws in the form of contract, property, and intellectual property laws
to facilitate its expansion (to be sure) and arguably to support its
existence as we know it. I don't think there's any significant
internet company that has been able to function effectively without
employing lawyers at least from time to time, and usually on a steady
retainer due to the volume of work.

> At the same time
> it manages to police itself much better than any Government could even
> do in other areas.

Self-policing, to the extent it exists, is not unusual in human
affairs.  Income tax laws heavily rely upon voluntary compliance
(self-policing) because audit rates are 1/2 of 1 percent or less.
Within the internet, the criminal law is completely insufficient to
punish every internet "pirate" much less all criminals generally - the
effectiveness of laws in that area depends upon voluntary compliance,
i.e. "self-policing" by internet users, if it is to be effective at
all.  (This is some of the self-policing to which you refer, but not
all of it).  There's simply not enough prison space available, and not
enough prosecutors, to bust everyone that's arguably guilty, whether
on the internet or off.

So, here again, your concept of "self-policing" both ignores the
manifest presence of law on the internet now for the lifetime of the
internet (and increasing some as time goes by, as it catches up with
technology, though never to completely catch up).  The way you assert
the existence and value of "self-policing" also keeps open an improper
inference, namely that the internet can function as we know it without
law.  That's a false statement, just look at all the internet lawyers
running around making money for interpreting laws related to the
internet.

The above being said, I will only that I am sure you can cite dozens
or hundreds examples of various forms of "self-policing."  However,
none of these will (1) disprove the "structural law" requirements of
the internet, or (2) show why so many internet lawyers exist if law is
not being applied to the internet.

In addition, if any of your examples of self-policing point to areas
that arguably are a sort of anarchistic free-for-all, or whatever you
like to call it, with true self-policing being the only "law" (this is
often called vigilantism) those would be the areas of the internet
that either (a) governments have chosen to abstain from, even as to
basic "structural laws", or (b) relatively new areas or niches of the
internet that governments are in the necessary and perennial process
of "catching up" in, because technology is free to be introduced
within the confines of structural laws, with the option of governments
or private litigants acting in the public interest to "catch up" by
regulating or prosecuting these areas as a specific need arises to do
so. (e.g. Napster)

Maybe you will get a nickname on this listserv, Daniel, like "Sheriff"
- for your assertion of self-policing and your assumed activity in
this area.  "Sheriff" would be much more polite than "vigilante".  ;)

> By the way, Governments don't understand the Internet, because the
> typical regulation relies on the principle "follow the money". Which
> does not work with Internet. (again, I am not calling the bunch of wires
> "the Internet")

This observation is a direct result of lobbyists for the
money-interests on the internet being paid to work full time to
advance their money interests, and too many activists being fixed
solely on reacting to the money-interests, thus the resulting
regulation is all about money-interests or "follow the money" and not
so much on public interest or a deep understanding of the internet.
While politicians may not all understand the internet the way you do,
a few do understand it fairly well, but the most important fact is
that paid lobbyists who understand their own interests on the internet
extremely well are the ones who have the ear of the politicians the
most.

Even absent the slightest corruption, it is natural for human beings
to follow and be persuaded by those arguments they actually hear
(lobbyists) versus those arguments they hear hardly any of, or none at
all (public interest or "deep understanding of internet" arguments).

Paul Lehto, J.D.
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