[governance] Major Consequences of Tolerating Corporate Governance

[Paul Lehto]

On 7/27/11, Baudouin SCHOMBE <baudouin.schombe at gmail.com> wrote:
> 2011/7/27 Baudouin SCHOMBE <baudouin.schombe at gmail.com>
>
>> Reading Roland and Paul, I wonder if it is not an issue of belonging to a
>> particular school. The problem of law, as we all know, is relative
>> depending on the context of each country and according to the realities of
>> human communities.

It is probably true that we come from different schools. But the
school that I consciously come from is the democracy school -- to
always keep in mind the requirements of human freedom, equality and
self-government that are the basic requirements and features of
democracy.  From that standpoint, I believe everyone (until I am
otherwise advised) is or wants to be a member of the Democracy School.
 The other choices of "schools" at this level are historically quite
discredited.  Of course, democracy also has its "problems" -- it
doesn't work as fast as some would like, and so on.  But it remains
the best of the systems available, and it is the only system that at
least tries or claims to exist to guarantee the equal human rights of
every person that it governs.

> The Internet has no borders and has no
>> owner. One of the most widely used instruments is the human rights through
>> the
>> world and in almost all countries, [...]

This is another good reason why human rights law is the most naturally
suited law for the internet - both are global in nature already.  That
being said, we do not have to "choose" to apply human rights law to
the internet, it already contains the internet within its global
jurisdiction.  We need only to enforce human rights law.

The two ways to enforce laws are an executive or regulatory type
enforcement agency (which presently doesn't exist at a specifically
global level, only the national levels and a little international) and
on a more or less case by case level via lawsuits (a slower method
that more or less does exist globally, provided the plaintiffs have
the resources and interest and a court recognizes its own
jurisdiction).  Based on this, we do need to "choose" to support and
expand the mechanisms for legal *remedies* based on law that already
exists and applies (human rights laws).  A detailed treaty on "rights
of the internet" would be *helpful* to such mechanisms for
enforcement, but not necessary.  Such a treaty would only provide
helpful detail in terms of thinking out how general human rights laws
apply more specifically to the internet, but courts can and do answer
these kinds of questions in the normal course of things.

The danger with such a treaty of detail regarding the internet is it
ends up being, in effect even if not intended to be, a way of rolling
back human rights laws on the internet, such as if various types of
exceptions are put into the treaty.  If a "stakeholder" model is used
for such treaty negotiation, because the internet is right now so
heavily corporate, it is highly likely that a corporate-style treaty
would result that would be more friendly to corporate interests than
to human rights laws, and thus would cut back on human rights in the
internet.  Thus, whether an internet treaty is a desirable thing or
not depends upon seeing the details of the treaty, which won't be
available until the treaty is completed.  As I see it, an internet
treaty, while possibly desirable, is not absolutely necessary (because
law already exists) and could well be a step backwards rather than
forwards.

>> I admire the quality of debate but it is answering in your development
>> environment. For countries like ours in Africa, this kind of debate is
>> accessible and possible for around 10% of the population. Even in the
>> sphere
>> of decision making, this type of debate is not very noticeable and even
>> less in the academic environment.

A nice compliment to the list.  But in my country (USA) I would say
this level of debate is experienced by less than 10% of the
population, much less. (In theory, because internet access is much
higher than 10%, it can be accessed or possible by much more).

But I think the hope is, both in Africa and Asia and Europe and the
Americas, is that those on lists like this take what they learn and
spread it around to others, even those without access to this list, so
that the 10% or less becomes 10% plus much more.  Sometimes this is
called "the diffusion of education" and it is probably the most
important function we all can have in the long run.
>>
>> "But governance can not be done by non-governmental, and especially
>>  corporate, actors without major consequences" (Paul Lehto,26 juillet 2011
>> 15:19)
>>
>>
>> I am immersed in an unopened confusion by reading the argument of Paul
>> above. Can give more clarification?
>> Baudouin

The quote that Baudoin makes from my prior post is really a topic
sentence, more or less, that summarizes everything I've written in the
last week or two here.  Those posts, if anyone is interested, can be
reviewed with that in mind.  But I will give some highlights here:

1.  The debate started, for me, with my response to a post suggesting
that we keep government "out" of the internet.  First, I pointed to
the fact that keeping government "out" of the internet does not mean
that law, or free speech suppression, or unfairness of any kind stays
out of the internet.  This is because the "law of the internet",
without government involvement, is set by contracts and terms of
service with largely corporate powers.  These are very detailed and
complicated, and if they were added up would weigh much more in kilos
of paper printouts than government regulation does or would.  All
contracts can be brought to court to try to enforce them, so the "law
of the internet" without government involvement, is set by private and
mostly corporate actors, but still enforceable in government courts.
Thus, to keep government out of the internet does not mean that we
keep force out of the internet: Contracts are private law so to speak,
and can be forced or enforced in courts.

2.  If we keep government "out" of the internet, we still have law and
governance, it's just not democratically-derived, it's set by private
actors, mostly corporations. This is a big issue in my view, and is
often out of view in part because "governance" is a somewhat broader
term than government, because "governance" includes private corporate
control/government.  The very fact that we use the term "governance"
even to name this list is a "frame" that helps to hide very big issues
because it includes both corporations and government within the circle
of what is presumably good "governance".  Some questions or
consequences of corporate governance include but are not limited to:
(1) When, if at all, should corporations or other private actors be
able to set the law of the internet?  (2) Is setting the law of the
internet on a piece by piece basis, as always happens with individual
contract approaches, a good idea?  (3) Does that lead to
predictability or uniformity of governance?  Here, by way of example
on this list, we happened to have a person elected to the board of a
private corporation providing nation-based governance of internet
domains.  In a series of posts, I pointed to how this corporation has
set up its own judicial system and made its own laws.  It does not
feel it needs to trace its own power to the people like in democracy,
its members are limited to those who own domains.  Its rules of
arbitration provide that no democratically-derived laws of procedure
shall apply -- even if both sides of the case and the arbitrator
agree!  That is remarkable in my view, and shows how this corporate
governor-corporation is protecting its perceived area of power or
"turf."

(3)  Conclusion: Keeping government out does not guarantee freedom at
all, and in fact guarantees non-democratic corporate
government/governance.  What is needed is to constrain government to
limit its activities to consumer protection and "structuring"
activities that create a fair playing field for all, but to not allow
government or any corporation to reduce or eliminate free speech.
(Corporations are great at eliminating or limiting free speech)

(4)  When we see posts or news that points to the "specter" of heavy
governmental involvement, we all oppose that, but this does not mean
we can oppose proper government role in the internet.  That is the
same, in effect, as opposing democracy and human rights, because
without government laws, the law is not democratic (it is
contractual), and without governmental courts that apply laws evenly
we do not have just judicial systems that apply all the laws,
including human rights laws, that freely elected governments have
chosen to endorse.

(5)  The irony is that opposing possible future governmental
wrongdoing in effect even if not in intent, hides the private
corporate wrongdoing for which we have even less recourse or things we
can do about it than we do with governments.

(6)  Someone will always govern the internet, will it be democratic,
or will it be privately and thus non-democratically controlled?
(Even when "private"-controlled, the democratic laws of contract and
such are still used, but they are second-class laws and the drafters
of the contracts are really in control).

Let me know if the above is not clear.  You ask a very good question
and I have not figured out the best way to explain.  Another thing to
look at is Parminder's post that also quoted something I had just
written and he thought it was clear in explaining the consequences of
further entrenching corporate governance.  The choice of corporate
governance should be a conscious one -- even if one supports the
present corporate regime of governance!

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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