NetHui 2011 - Session 1 - globalisation, the internet and the law

posted 28 Jun 2011, 16:33 by James Williamson

Law of the net – session 1


  • in the 90s when the internet was starting up, was dominated by libertarian ideas, freedom of speech and information etc

  • now increasing calls for governments to introduce regulation, to enforce laws over child porn, copyright, hate speech etc – also digital rights, net neutrality etc.

  • New technologies change social discourse – compare to printing press, was used both for government propaganda and independent counter-argument

  • gradual creep of trying to bring some order to a chaotic and distributed environment

  • governments have sat up and taken notice of internet / social media as democratic tool after seeing recent events in Egypt etc

  • Internet as effective tool for people to unite to bring social change – flip side is that governments now have free access to discussions among dissidents etc which previously they could only have obtained by interrogation and torture

  • Compare to first english translations of bible, "unofficial" translations from latin contained added ideas considered heretical by the church, spurred production of "official" translation

  • inevitable that states and the law would become involved in the net sooner or later as the alternative is anarchy – this may be generally a good thing, but most of the internet's potential capability is still unexplored, so precautionary principle is important, trying to prevent people using the intenet to challenge established business models is short sighted – risk of using the law to protect the past at the expense of the future – imperative to policy makers to not screw it up!

  • 1980s saw globalisation of capital – no longer controlled by governments but instead has self regulating system. Internet and law – whose law is it, no single national government can be the source of authority or legal jurisdiction. Money and capital still move to places where laws to control them don't exist, so does the internet. Makes internet inherently challenging to govern. Not so much about law as about new norms of global behaviour in this new environment. - i.e. "trolling" developing as an unacceptable behavioural norm. If people currently in power are challenged by the new norms, they may try to stop them developing, but are unlikely to succeed.

  • Increasing moves by the major players (microsoft, google etc) to call for regulation themselves in the wake of hacking attacks, lawsuits etc. Not just about the governments trying to control things, corporations are as well, but individuals also need their rights protected as well as protecting corporate profits.

  • Regulation of the internet may not come through legislation and democratic discussion, but rather through closed discussions of trade policy which restricts what we can do, growth of the internet and evolution of the technology.

  • Law is not guaranteed, subject to cost-benefit considerations, "good enough for now", as is the internet, so the law will morph to adapt to this environment given time – but will it evolve fast enough to keep up. Be careful what you ask for, because the more people call for regulations, the more politicians will be motivated to try regulate, often in a heavy handed and poorly thought out way that may hinder more than help.

  • Existing regulations apply to most criminal acts carried out online, just changes the venue and way the crime is committed. Legislation must follow innovation and be accompanied by social change and technological fixes, can't do the job by itself. Some new laws introduced however, e.g. s 248-252 of crimes act, misuse of a computer.

  • Internet is the latest in a long stream of communication technologies, preceded by printing press, radio, newspaper etc. Difference with the internet is that it is now cheap and easy and international for ordinary people to get their message heard and talk with other individuals on a one-to-one or many to many basis, rather than centralised propagation of message. Battle between the future and the past, the past will always try to control the future because the past is comfortable in its incumbency, so look around and see what current models are threatened – repressive governments, publishers, music and movie labels. However it is the state which imposes regulation, so threats to the established order and current law are what will spur the biggest responses.

  • Look for who benefits, cui bono – often it is the governments in charge, but more often it is about money, corporations who will try to protect their money and ongoing income stream.

  • Need to connect online and offline regulatory systems – look at bloggers and human rights activists being arrested overseas to show how governments are monitoring activity online to control people offline. Governments also try to control the internet by ordering companies to take action, e.g. shutting down cellphone networks in Egypt revolution, and this makes internet companies nervous as government approach is often simplistic and poorly thought out.

  • Role public opinion plays in influencing governments – interplay of the internet and traditional mass media in swaying public opinion.

  • Most old world laws apply remarkably well to the internet, better than might be expected – fair trading act and consumer guarantees act needed very little modification to be applicable to online trading, which shows flexibility of existing law under many circumstances. Tendency to generalise on how the internet impacts on our daily lives, with regulation of the internet as a whole, but these are separate issues despite being closely linked.

  • Lots of law developing in this area – copyright, domain names, jurisdiction, criminal law – but these are mostly existing areas which are just being adapted to fit internet issues.

  • Liability now applying to internet activities which would not have been criminalised under traditional law, or at least would be much harder to catch people. So in some areas the internet has made it easier for people to be prosecuted (for banned pornography for instance)

  • Resolving the issues requires open discussion, yet we are seeing increasingly closed door discussions, governments discuss planned laws with corporate interests and international trade groups, then only open it for public discussion once the law is largely already drafted and only minor further modifications will be contemplated.

  • Internet providers need to be given a greater say in how internet laws are written, at the moment they are largely ordered around by governments who may not fully understand the issues, often at the prompting of overseas corporate interests with undisclosed agendas.

  • Some powerful corporations may be able to exert particular influence outside of traditional legal channels – e.g. Apple could potentially censor the internet content available to iPad users at its own discretion without having to tell anyone what it is doing, or breaking any laws.

  • Quality of the law is the issue.

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