[governance] U.S. - Japan Policy Cooperation Dialogue on the Internet Economy

[Paul Lehto]

On Mon, Oct 29, 2012 at 11:54 AM, Chaitanya Dhareshwar <
chaitanyabd at gmail.com> wrote:
Are there even "laws" as far as the internet itself is concerned? (not
talking about laws governments have created; I mean laws that form a legal
foundation of the internet) - my assumption was that such a thing didnt
exist.... Governments making laws yes but those laws are not the foundation
of a free, open internet because in it's original, free, open form the
internet is based around concept, understanding, achievement - not laws.

Or am I wrong here?

One can get very large legal books entitled "internet law" or similar.  But
you are anticipating that and asking if law provides a foundation for the
internet.  In a general sense I would say yes, because the general laws of
contract and intellectual property provide such a foundation, and the issue
at this level is whether we will apply all of the law (including consumer
protection and anti-discrimination laws) to the internet, or just the laws
that business forces find most useful - contract and property laws.

More specifically, though, in legal systems founded on freedom, no License
is needed to create something like the internet and one need only look for
prohibitory laws that may be applicable.  In this sense there can not be a
fundamental "foundation" law authorizing the internet or any other creative
human activity. Perhaps you are thinking of something like an Enabling Act
- things that usually authorize things like the settling of territory,
etc.  These enabling acts arise out of powers of otherwise limited and
supposedly freedom-loving governments that are typically considered plenary
or total powers, like immigration/emigration and national security.  If
these powers are implicated, then legal permission or license is required
in order to act or create.  Thus, one must have an affirmative act or law
supporting their right to emigrate to a country or immigrate into a given
country.

In conclusion, in countries based on a presumption of freedom, contract and
property laws nevertheless provide a general foundation but not a specific
permission, license, or specific structure for the internet.  In other
countries, one needs not only the general foundation but the specific
structure and permission, and creativity is thus more limited.  In
addition, a third class of laws that wished to assist internet development
(perhaps with a subsidy) and also structure some of its aspects along the
way may exist and provide something you may consider a "foundation".  Of
course, these vary from country to country.

Paul Lehto, J.D.


-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4965 (cell)
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