[governance] SOPA or no SOPA

Wed Dec 14 17:12:17 EST 2011

On Wed, Dec 14, 2011 at 3:21 PM, Sonigitu Ekpe <
sonigituekpe at crossriverstate.gov.ng> wrote:

> Thank you Daniel.
>
> The truth is that interest has over taken RESPECT of each other.
>
> The World would give us more than we currently have; if will could put
> respect first.
>
> The US do have great interest; and WISH to control an orderly Global
> Village.
>
> To me its time to set the Global Village with the rules and regulations
> for a more respectful World Societies.
>
>
This reminds me to bring us back to a prior discussion, where I showed
(except to the satisfaction, it seems, of a couple posters on this list)
that there are always "background" laws from some country or jurisdiction
that structure transactions involving the internet.  No matter how
dedicated a tiny minority might be in not using contracts (and thus the
contract laws of some country or place) *they will still claim the legal
right to the ownership of their own server, or their own computer, thus
implicating the property laws of some country* or place, even if this tiny
few refuses other legal structures like internet commerce with its
contracts and terms of service with Visa, MasterCard, PayPal, or the like.
Even this tiny minority on the internet will still claim, very likely, some
kind of right to be free of basic denial of service attacks, and so forth.

If there is to be any civilization on the internet, we need legal tools
that go beyond the primitive tools like retaliation and social ostracism
(not available for anonymous attacks) that are practiced in extremely rare,
relatively law-free situations.

*If we start out with a truly law-free system, people will rapidly develop
a very large consensus that there needs to be a way to enforce promises
(such as those in contracts) so that trust and reliance on the word of
others can be promoted* -- this is very good for the economy among other
things.    An extremely large consensus will rapidly form, for example,
that when one buys something or says something, the thing one buys should
work at a basic level, and the words spoken should not be a direct death
threat.  This leads, respectively, to what's called the "implied warranty
of merchantability" in contract law and certain criminal / libel laws (in
common law countries) to protect the reasonable expectations of buyers and
the reasonable expectations of those who wish to engage in free speech.
"Free speech" has never meant - to any serious thinker anyway - speech
entirely devoid of all civility and respect, no matter how extreme.

The key to all of this is a balance.  *There MUST BE some "structuring
laws" like those I mention above, but they SHOULD BE as neutral a playing
field as possible*.  What it seems we all want to avoid (but some confuse
the issue by implicitly stating that this kind of abuse of power is *the
ONLY thing* governments do) is prevent heavy-handed government control and
over-structuring of the internet.   But just because we oppose heavy
government censorship in China, for example, does not mean that ALL LAW is
a bad thing.

Law is, as I try to show in brief form above, *a necessity at some basic
level*.  The question is only *who* the governments will be that will
provide the necessary law (even if this law is chosen in an internet
contract with a "choice of law" provision) - even if we have to create a
new global democratic government system for the internet - and *whether *that
law will be a type of neutral law facilitating the freedom, equality and
protection of all, or whether it will be driven by special interests or for
the advantage of certain public or private power brokers, whether they be
business interests or governmental interests.

Neutral laws can be imagined or derived from thought-experiments involving
the idea of the "veil of ignorance."  That is, we imagine ourselves before
birth, ignorant of whether we will be born rich or poor, healthy or ill,
etc.   Not knowing our fate, we are not able to prefer any special
interest.  Under these situations, we quickly develop very large majorities
if not unanimity that all humans should be considered equal in certain
basic respects, etc.  On a little more sophisticated level, we can also
imagine similar neutral laws for the internet. *This "veil of ignorance"
example can be used as one test of whether a given law is of the neutral,
freedom-facilitating and equality-facilitating type,* or whether it is of
the special interest/power broker type of interference that very few really
support, both in the real world and in the "veil of ignorance."

We ought not to engage in fantasies of "no law."   Those who do engage in
such fantasies are either doomed to very primitive conditions of
retaliation or ostracism when things go bad, and they simply don't "see"
the invisible laws that continue to structure human interactions, whether
they know it or not.  What we, I think, all want to do, is make sure we
have a framework of neutral laws that facilitate the structures of freedom
but at the same time also make sure that there are no, or very few, unjust
laws.  Without law, it is the law of the jungle -- victory of the powerful
over the weak -- that dominates, and it has been a number of centuries at
least since a majority thought the law of the jungle was in any way just
(if indeed a majority EVER has thought so).

So I am not confused with those who rely too much on consensus, I will also
add that in certain important cases we will also need not consensus-based
decision-making but majority rule decision-making.   But here, there is
such a thing as "the tyranny of the majority."  Majorities can oppress
minorities.  To solve this democratic dilemma, we have developed TWO tiers
of law.  First there is constitutional law - the most basic protections and
rights - which mere majorities can not change (but usually large
super-majorities can).  Second, there is "regular" law.    In all of
the *situations
where the tyranny of the majority danger is greatest, we protect freedom
and equality with the high constitutional law*, so that temporary
majorities don't take advantage of minorities (e.g. constitutional rights
against race discrimination, etc).

With all of the understandable anti-law or anti-US-hegemony talk on this
list, I think it is important to understand that from the perspective of
being behind the "veil of ignorance"  it can be seen that while reasonable
people may disagree on the number of laws and sometimes on their content,
there can be no *reasonable* assertion that the internet (as we know it)
can exist WITHOUT law entirely.  So the question is *who* will make the
laws and *for where*, and *what *their proper content should be.

Paul Lehto, J.D.

-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026 (cell)
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