Law in the Internet Society
This paper is the outcome of my thoughts about the content of my first draft, the comment on it and the conversation about it. As a result of this process I had to start afresh and could not just rewrite parts of the first draft. The first draft and the comments, however, were essential prerequisites for writing this paper.

New Society – New Rules

The Internet has created a new environment marked by distinctive conditions that distinguish it in manifold ways from the analog world. This environment hosts an emerging society that operates according to the conditions it encounters in this new space. A substantial part of the values and norms of social, cultural, political, legal and economic systems that evolved in the analog world are ill-equipped for their application to this digital world since they do not reflect its particular character. If the Internet is not to be deprived of its most significant characteristics, it will be inevitable to allow for this new society to develop rules and values that internalize the environment accommodating it.

The Creation of an Unprecedented Environment and a Novel Social Body

In contrast to other means of mass communication, the Internet is considerably more than merely a tool of communication. It is a virtual room that maneuvers large parts of the analog world into a digital world, which is – in contrast to the former – accessible from everywhere and for everybody. It constitutes an unprecedented new space, only marginally affected by geographical and territorial borders, where people around the world meet, communicate, negotiate, work, consume and share substantial parts of their lives with one another. Thus, the Internet’s most remarkable feature is its ability to reduce physical and the related time restrictions, thereby making the realities of people that would otherwise never be exposed to one another grow together. In so doing, the Internet creates a new environment and the people it accommodates constitute a new social body.

Societal Organization and Its Reflection of Realities

Societies over time agree upon certain forms of social, cultural, political, legal and economic orders, which reflect the particular context within which they evolve. The way societies organize themselves is the result of a process of adaptation to multiple factors such as shared experiences in history or geographical and climatic conditions. Just as societies in the analog world derive their customs and norms from a process of adaptation to parameters such as for instance geography and history, so does the new social body created by the Internet adjust its behavior to the conditions distinctive of the digital world and develop values, norms and rules that reflect the terms prevailing in it. This organic adjustment process of an emerging and novel society to the decentralized, open and digital nature of the Internet experiences constant interruptions when traditional societies, represented by their state governments, try to apply values, norms and rules to it that evolved in the analog world. The ensuing conflicts and difficulties demonstrate the discrepancy between the conditions of the analog and the digital world. Moreover, they show that the Internet requires the formulation of values and norms that reflect its particular reality.

The Failure of the Enforcement of Rules, Norms and Binding Values from the Analog World in a Digital World

The digitalization of content and information and its almost frictionless transportation through the Internet challenges traditional economic models and industries. So do capitalist economies engage battalions of lawyers for the Sisyphean task to apply copyright laws - that were modeled based on the presumption that information requires a physical object to be displayed or transported - to a digital world. But an array of new technologies, such as for instance decentrally organized P2P? file sharing – provided for by torrent hosting sites such as Pirate Bay or isoHunt – elude the mechanisms of copyright law and enable end-users to multiply, share and transfer large files. Apart from challenges to the implementation of traditional economic models in the online world, the Internet likewise unsettles societies’ thought- and speech control and their efforts to uphold and reinforce carefully or even forcefully maintained cultural, social and political values. It does so in simply offering users access to communication forums and content that might be in conflict with local or national values but also in facilitating technical methods to obtain online anonymity to circumvent legally or socially binding rules. VPN/Proxy based software as offered for example by The Tor Project hides users’ physical location and IP address, thereby enabling access to websites that are blocked by ISPs or network administrators or to those that cannot be accessed from a user’s country. This way a German Holocaust denier will be able to express his opinions, which are proscribed in Germany but legal in the U.S., and an Iranian government critic can view websites blocked by the government and share his political opinions with like-minded people. Even in the drastic incident when the Egyptian government shut down the Internet during the Arab Spring in 2011 to cripple demonstrators’ efforts to communicate and organize themselves, the Pirate Party and Telecomix contrived ways and means to reorganize Internet access for Egyptian citizens.

Adaptation to a Digital Order

These examples demonstrate that a substantial range of the values, norms and rules that originate from societies’ experiences in an analog world, are fundamentally ill-equipped for the organization of a social body that operates in a digital world; the main reason being that the world to which they are applied to differs from the world within which they were developed. Efforts by governments or other regulatory bodies to enforce their values and rules online will never fully thwart the evolution of values, norms and rules that reflect the adaptation of the online society to its digital environment but considerably restrain or even criminalize this process. If governments and other regulatory bodies do not establish regulatory frameworks that deprive the Internet of its most unique – and in my opinion most beneficial – characteristics, such as distance-reduction, decentralization, simple accessibility and usability as well as its openness, they will inevitably have to adapt their policies to values, norms and rules that reflect the conditions of a digital world and appropriately accommodate the new social body created by the Internet and refrain from subjugating it to realities of an analog world that are alien to it.


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r7 - 07 Sep 2012 - 16:50:05 - IanSullivan
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