Future of the Internet Symposium: Does anyone care about the ‘rule of law’?
I would like to suggest another angle to consider in this dissection of JZ’s wonderful generative book: Do we still care about the ‘rule of law’?
The theory of generativity relies on self-governance through an open market approach and embodies an abhorrence of “governability” by states. This I find troubling. Why is governability by states so abhorrent? If we believe in the ‘rule of law,’ governability by states cannot be anathema. States through their political and legal processes express public values through law. Generativity does not have a mechanism for all of society’s stakeholders to participate in decision-making about the values embedded in technological decisions. Privacy and security are good examples. Transparency may be the choice of some online participants with respect to their personal information, but that choice has important third party implications (e.g. the consensual disclosure of a person’s DNA also reveals information about that person’s non-consenting relative). The political and judicial process arbitrate third party rights and society’s reasonable expectations of privacy, by contrast the technological development and deployment/adoption process impose determinations. With respect to security, JZ recognizes that generativity is self-destructive and looks to individual liability as the solution. Yet, individuals will typically lack sufficient technical knowledge to engage in self-help. This is the classic situation where citizens look to the state to protect the public’s welfare.
Lon Fuller, in his work The Morality of Law, argued that “laws must exist and those laws should be obeyed by all, including government officials.” The future of the internet should not grant an immunity card from accountability with respect to public values. Rejecting governability by states is more precisely a rejection of the rule of law. In this vein, the tethering of appliance may a natural maturity of the internet toward acceptance and re-enforcement of the ‘rule of law.’