[governance] FW: TP: city government exercising policy on Google Applications / consumer rights / Consumer Protection Act / trial period

[Paul Lehto]

On 7/15/11, Norbert Bollow <nb at bollow.ch> wrote:
> Daniel Kalchev <daniel at digsys.bg> wrote in raply to an email by
> Paul Lehto:
>
>> This is all true, except you miss the whole point. Internet
>> resources are private, not public.
>
> Even for resources where this is true and morally justifiable,
> the *rules* of governance of these resources should be considered
> matters of public interest.

This point, while good, should be stated more strongly.  Even where we
have a 100% "private" ownership and transactions between 100%
"private" persons, the rules of contract law that govern contracts and
whether they are legal or illegal, enforceable or unconscionable and
oppressive, or whether the terms are fair or fradulent/deceptive, are
all quintessential *public* matters, with the legal rules set by
legislatures elected by the people after a public debate or
deliberation. It is not that the *rules* of governance "should be
considered matters of public interest" they indisputably are matters
of exclusive public interest in all contexts.

It is primarily only regarding the internet that rule-making authority
has been delegated to private parties without (so far) legal
challenges being brought successfully.   For example, when a
legislature decides that perhaps they lack expertise in construction
codes and delegates the drafting of portions of the construction code
to an organization of builders and architects, incorporating the
builders' code by reference as the law of the country, such
delegations have been struck down upon a proper legal challenge as
impermissible delegations of democratic law-making authority under
what is called in the USA the "nondelegation doctrine."  This doctrine
is a constitutional doctrine because it protects the exclusive
law-making function assigned to legislatures and Congresses and
prevents such public power from being given away to some other entity.

The Internet, of course, is nowhere near 100% private.  Yesterday, my
country (the USA) declared the Internet a "domain of war" for various
reasons, not the least of which is that the .mil domain carries
sensitive military information over public or otherwise insecure
pathways.  But even if the internet were 100% private, the legal rules
governing the private law contracting process by which private persons
reach would still be a clear matter of public interest and concern,
just as a private contract to sell property implicates a large range
of public laws governing the contract and the land, and disputes about
this private transaction would be in public courts, in open hearings
that the public has a constitutional right to attend, despite the
"private" nature of the transaction at issue.

One of the most controversial aspects of Internet governance is the
extent to which, as exemplified by CIRA, law-making and rule-making
functions, together with the right to set up "courts" for arbitration
purposes, has been delegated to private corporations, and away from
what has always been a public matter.  As also seen with CIRA,
policies have been developed to claim that the procedure of these
arbitrations must not cite domestic or foreign democratically passed
laws, even if the parties and the arbitrators agree!  This is truly a
breath-taking development.

If one considers that self-government (the core of real democracy)
means the right and opportunity to participate and structuring
society's legal rules for both private and public transactions by
passing laws, the delegation of many of the powers in this area is an
anti-democratic and anti-self-government development.

> The concern which Paul has raised is about the current owners of
> private interests in these resources having near-absolute power
> or at least unjustifiably great influence on the rule-making
> processes.
>
> This is a very justified concern in my eyes.

Again, I would say it is more than a mere concern, it is an
unconstitutional development for any country considering itself free
and self-governing.  Only "the people" -- all of them -- can
legitimately set the rules for private and public transactions, not a
subset of the people or a corporation.  "The people" delegate their
power, temporarily and for a period of time, to elected
representatives who consider and pass the laws not everyone has the
time to study.  When the power of passing laws is essentially
permanently delegated away from the control of the people as a whole,
that is not a legitimate law or transfer under nondelegation doctrines
because representatives hold the people's power in Trust, to use only
for their benefit.

Such transfers that defeat democratic power and authority are more in
the nature of a coup d'etat.  They await an appropriately drafted and
litigated legal challenge.  And if such challenges are for whatever
reason not successful (and sometimes challenges take decades to appear
even for clearly unconstitutional actions) then the coup d'etat has
succeeded and we no longer have a system that in its basic structures
claims to be democratic and derive its powers from the people.  We
instead have some sort of aristocracy able to set laws and rules in
certain sectors independent of the people.

>From time to time, people on this list express frustration or
criticism of the difficulty of working with elected governments, who
are often out of touch with the people they nevertheless purport to
represent.  While much of this criticism is all too often true, the
answer to the problem of faithless servants (elected politicians and
their assistants) is not to set up "stakeholder" law-making that makes
faithlessness and unaccountability to the people a permanent and
institutionalized feature of governance.

The only persons that ought to be happy with such developments that
institutionalize faithlessness and break the links of accountability
to the people are those players in governance who gamble that the
delegation of democratic authority to some private stakeholder
consortium in order to better and more efficiently or wisely govern
the Internet is something they will personally be in a position to
influence, i.e., that they will be one of the aristocrats exercising
the authority of the people, without tracing any mandate at all back
to the people themselves.  This improves the position of such folks in
terms of influence, at the expense of killing off accountability and
even the pretense of deriving one's power to make rules from the
people themselves, who are the only legitimate source of such power.

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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