Should The Internet Be Lawless?

Sometimes we advocates of a robust and “free” Internet sound like we’re saying the Internet should be a lawless.  Shame on us.  We need to be a little more precise.

Here are some reasons why Internet radicals like me do want SOME law on the Internet.  The trick, and it’s an important trick, is to legislate in a way that neither stifles innovation nor makes Internet communication less private than say a phone call is supposed to be.

If the Internet is a law-free zone:

1. Governments can do whatever they want there including spying and blocking.  It’s naïve and illogical to think that governments are governed by law in a free fire zone when no one else is.
2. Monopolies can do whatever they want including blocking competing services.
3. Malicious people are free to attack not only other sites but the structure of the Internet itself including its routers and domain name servers.
4. Threats, libel, and fraud gain immunity from investigation and prosecution by being carried out on the Internet.
5. The Internet becomes a river in which any conspirator can wade to avoid the bloodhounds of law enforcement.
6. There are no laws PROTECTING privacy in a law-free zone.
7. SPAM is a legitimate as any other activity.

I think of myself as a civil libertarian.  But I had an attorney threaten legal action against Yahoo when someone on a Yahoo-hosted website impersonated my son and passed out bogus insider information on the chat group which discussed the company whose CEO I then was.  We didn’t subpoena Yahoo for the person’s identity ONLY because they found some way on their own to stop the impersonation.

If a sexual predator is hunting in a chat group on AOL (or elsewhere), I do want law enforcement to be able to use subpoena power to find out who that person is.  Even less politically incorrect criminals than sexual predators are NOT entitled to Internet immunity from prosecution.

Spreaders of viruses need to be hunted and caught.  So does Osama bin Laden.

In fact, I can’t think of any reason why my record at an ISP ought to be any more immune from subpoena than my bank account records, my credit card purchases, or my hard drive. (Of course, I already know that direct marketers have access to most of this stuff easily.)

The key word I’m using over and over is “subpoena” – and not because I’m trying to get a high Google hit rate from litigators.  As important as it is that there be a rule of law, it is equally important  that there be rules which govern the law.   Article IV of the US Bill of Rights says:

"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."

This pretty plainly says no witch hunts or fishing expeditions.  But it also doesn’t provide any safe harbor from warrant, search, or seizure.  The word “unreasonable” even implies that circumstance may dictate action.  In the face of an immediate threat – or in the immediate aftermath of an attack like 9/11, “reasonable” may preclude crossing all the t’s and dotting all the i’s.

Almost all of the time we should be entitled to an expectation of privacy unless a subpoena or a warrant has been executed.  The judicial review implied by this IS an essential part of our freedom.  I could understand, for example, the US administartion exercising executive prerogative to take investigative shortcuts in the period right after 9/11 or even in the face of specific immediate threats long after.  But investigative shortcuts can’t become the norm.  Nor can they go without post-review.  That is scary.

The subpoena process worked right in the recent Google case.  A subpoena was issued; it was too broad; Google challenged it as they had a right (some would say a responsibility) to do; it was narrowed.  But, if government were free to take the data it wanted without subpoena, then there would be no avenue for appeal.

The debate over the limits of freedom are older than our republic and they’ll go on as long as there is freedom to have this discussion.  As technologies change, rules have to be redefined. That’s inevitable.

Those of us who believe that the Internet can be and is a liberating force in all aspects of the phrase, need to acknowledge first that there is and ought to be law on the Internet.  Then we can get into the interesting questions like what country or body gets to make that law, how is it enforced, and how is it appealed.

Which leads to one more well-deserved plug for F2C: Freedom to Communicate, the conference in Silver Springs, MD April 3 and 4 sponsored by David Isenberg and pulvermedia. Many people there will think I’ve taken too statist and conservative a point of view on the issue of Net-freedom.  Some may think I’ve been too liberal.  What’s important is that most people at the conference think this is an important issue and are well-qualified to discuss it.

A related post on an F2c issue - Intelligent vs. Stupid Networks - is here.

Comments

[Jonathan Buhacoff]

We have to differentiate between laws that govern the underlying communication technologies and laws that govern personal and professional behavior.

Laws that govern the underlying communication technologies may be needed in order to prevent monopoly, to ensure public safety, etc.

Laws that govern personal and professional behavior do not need to change for the Internet. For example, since it's illegal to murder a person in most countries, it doesn't matter whether the victim was lured from a bar or from an online messaging group. If it's illegal to engage in insider trading, then it doesn't matter if the information was written on the wall of a toilet stall or on posted a clandestine website.

Which country has jurisdiction over crimes committed with the help of or exclusively using the Internet? There's more than one way to do it, and none of them need to address the Internet specifically. It's the Internet now, but the same issue already exists for telephone service, and will continue to exist in the future for communications technologies that haven't been invented yet. It even exists in our imagination through published fiction -- crimes involving teleportation across borders and harmful telepathy/telekinesis with global reach. The best course of action is for the public and for legislators to use technology-neutral phases. We should be talking about crimes committed over a distance in time and space, possibly crossing international boundaries... not "Internet crimes". If you have to coin a short word or phrase for the concept, I would opt for "telecrimes".

A telecrime could be local, national, or international. In the future, it may even be interplanetary... but if we lay a good philosophical foundation for the concept, we will be able to deal with it at any level.

Anyway, I agree with Tom... the Internet should not be completely lawless. And we need to differentiate between laws that govern the underlying technology and laws that govern personal behavior in any situation, regardless of what technologies we use to express ourselves.

[Chris Gilbey]

Its a great theory. And I love the concept. Problem is that you get people like the guys from Kazaa, who (regardless of what your view is on Kazaa) hired the best lawyers in IP, tax etc... or so it seems, to ensure that they set up Kazaa in enough domains so as to confound totally the content owners in the record business who would dealy love to nail them. Now I am not suggesting that I necessarily side with the content owners point of view totally either. All I am saying is that a legal framework is unfortunately good in theory, but in practise is going to establish a set of loop holes through which someone will drive a truck.

So if you want to hold the feds (of whatever country) to account.... well you could try it. But would it get you anywhere? I doubt it.

And by the way.... which country's law? Each country has different laws about libel, IP, etc.... if we could get them together that would be pretty good..... but if we are going to be fanciful, I would vote for French law. Highly protective of domestic IP. Highly interested in opening up the walled gardens, with the added benefit that 9/10th of the world wont understand the language in the first place.....

[Mark Johnson]

Interesting observations. One shouldn't discount the fact that many private organizations (NetNanny, McAfee, etc.) have created private solutions to problems typically assigned to the government. One important aspect of regulation is only to legislate when things become a problem. Pre-emptive solutions will stifle market innovation and we'll get UncleSamNanny and McUncleSamFee, which won't work as well and be horrendously expensive.