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.’

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6 Responses

  1. Jason Treit says:

    I think both you and Fuller would accept “laws must exist” as a speculative rather than an empirical claim. Stable, legitimate states with value-expressive legal regimes don’t materialize out of ether. Rule of law develops slowly, and prevails in defined contexts.

    Consider revolutions, where the law necessarily waits in limbo for new first principles to press up from the roots. These principles may look like the US Constitution or they make look like a tyrant’s decrees; but to take rule of law as prior to either outcome is to put the exabyte before the bit.

    JZ once called the net a “collective hallucination”. Beneath the joke is a quiet philosophical point about where social arrangements come from. Keeping the Internet ungovernable to the organized forces from which it emerged is valuable to those who accept the Internet as a revolutionary, unique, and stateless environment – which may, in defined contexts, slowly develop its own rule of law.

  2. Joel Reidenberg says:

    I think that “Laws must exist” is a first principle normative claim. Revolutions occur when the rule of law fails.

    I do not accept that the internet is a stateless environment and I am not convinced that there is a failure in the rule of law for the internet. To the contrary, I believe that the rule of law does and should apply to the Internet and that we need to be careful that a technologically savy minority is not imposing its views on the non-technologically savy majority.

  3. Steven Bellovin says:

    There’s another case here: a lot of the closed systems are closed to suit narrow commercial interests — think iPhone, AOL, and more. Banking appliances may come into being not because the Fed mandates their use, but because some bank thinks they’ll make more money (or lose less money) that way.

    There are legal and philosophical questions here, but they’re not about the concept of the rule of law. Should it be illegal to jailbreak an iPhone? Apple claimed so (or asserted that in order to scare people); the Library of Congress ruled that that did not infringe copyright. The DMCA won’t let me strip protections from DRM-protected media, which makes a mockery of my rights under the first sale and fair use doctrines. In the 1990s, Microsoft engaged in a variety of behaviors to lock people into Windows; these were at least arguably violations of the antitrust statutes. All of these incidents represent anti-generative behaviors where the violation of law, if any, was by the party trying to lock people in.

    The question, then, is to what extent private rules should have the force of law. In the Lori Drew case, the judge held that violating terms of service was not a violation of the Computer Fraud and Abuse Act.

  4. Joel Reidenberg says:

    Actually, I think the DMCA case is an interesting one for your question, Steve. The DMCA protections for DRM are, in effect, a statutory grant to private parties (content owners) to set private rules that in turn have the force of law providing sanctions.

    As much as one might disagree with the scope or substance of the DMCA, the statutory approval for anti-generative behavior was a legal decision adopted by our political process.

  5. Jason Treit says:

    Joel, you might find worth in JZ’s talk “Civic Technologies and the Future of the Internet”, either as a foil or a bedrock for your take on the limits of generativity. I’ve dug up a good slice from just after the hour mark:

    Before law enforcement became so specialized, became so removed from the people with whom and for whom it was enforcing the law . . . if you needed to do major enforcement, the sherriff would gather together a posse . . . and this actually became very significant. Because in the late 19th century an accommodation was reached among political elites between north and south having to do with the return of fugitive slaves. And the north said, we will return fugitive slaves to the south, that’s part of keeping the union together. It turns out that this law in practice was dead letter, because the northerners, when assembled for the posse to go find and return somebody, were like, “I’m sorry, I have to shampoo my cat.” The posses just didn’t materialize. And that’s because there was a civic dimension to such an intrusive law in order for it to be [brought] into effect. And it was in fact that civic dimension that saved us from the immediate effects of the law rather than the rule of law itself. Because the rule of law is what give us the Dred Scott decision. So to me the question is, how can we deal with the very real problems occasioned by civic technologies in the mainstream that have not yet organized a civic defense system…

  6. The key issue is that the rule of law cannot keep up with technological progress. Review what the Internet looked like just 10 years ago, and how people accessed it.
    That’s the type of vision most legislation seeks to address instead of the breakthroughs we see almost every day.
    Regulate behavioral targeted tracking with cookies and packet sniffing techniques are used instead for data mining and creating individual user profiles. As long as there’s a monetary incentive, tech will be used to circumvent existing law and leapfrog over proposed legislation. In many instances, the rule of law becomes a quaint irrelevant notion.