Law in the Internet Society
According to Ai wei Wei, regulating internet is vain and the Chinese State will eventually fail doing so. However, control over internet is a reality,

What reality is it? Not mine, anyway. Perhaps a definition of "control over [the] internet" would have been helpful.

and the States seem increasingly eager to assert their sovereignty in that space, edict their laws and their ‘walls’. In such a context, can internet be ‘free’?

1) Is it suitable to regulate the internet?   The internet is often seen as a formidable tool for the freedom of expression, a new ‘ecclesia’ were people can gather and exchange ideas. It is a source of knowledge and education that expand every second, thus enlarging the range of information available for its users. In a way,  this extensive availability of data question the States legitimacy and internal sovereignty, just as the printing and edition of books, from the 15th century on, questioned the power and legitimacy of the Church, and that of monarchs through the broadcasting of pamphlets for instance. Therefore, following the Enlightenments, it is suitable that the internet be free. 

What does "suitable" add here? As you suggest, are we deciding whether we are for or against the Enlightenment? Is this a legal question?

On the other hand, a certain control other the contents available seems adequate when it comes to incitation to hatred, violations of fundamental Human rights, or other threats on freedom, as for instance to malevolent use of viruses, the diffusion of bombs plans etc.

Surely these aren't a category, or even a reasoned collection of categories.

Then arises the complicated question of how much control is not too much control, how far can a government go before censorship is not in help of freedom anymore, but against it? The dividing line is far from being clear, and any control or restriction necessarily goes, by essence, against freedom. 

So what have we learned? What is the argument?

2) Is the debate over an international regulation of the internet, which polarizes opinions for a free internet, or for the creation of a regulative framework, a sound debate? 

What does "a sound debate" mean?

The debate, in the way I have seen it presented mostly, opposes partisans of a ‘free internet’ and defenders of ‘a regulated internet’. However, the current state of things isn’t that clear. Internet is currently both free and controlled. 

So you are giving up on the inflexible and uninformative preceding analysis?

It is free precisely because there is no international framework to regulate it, the States do not agree on the regulation needed (or even what regulation means), and therefore, not only there is not one coordinated power to oversees the regulation, but the efforts to regulate may well clash from one State to the other. Furthermore, there are ways to bypass the control of a jurisdiction, because people can use pseudonyms to protect their identity and diffuse their ideas.

This is not a satisfactory technical description, and the technical confusion leads to confused social description.

It is free because it was not built to be easily controlled, the development of internet was willingly done in a decentralized and non-hierarchical way (at the demand of the US Army which wanted the network not to have an identifiable core, so as to make it difficult to attack). The internet is free-er every minutes because it grows bigger, and the more ramifications it makes, the more expensive and time-consuming it gets to overlook; and  because it evolves or recreates itself faster than control devices can catch up with: as with Hercules’ Hydra , you can cut an head, there are still many others, and the head will grow back anyway. 

This is not a factual description, just a farrago of semi-studied pseudofacts.

Meanwhile, internet is already controlled and regulated. The basic control is a control of the ‘pipes’ : those are under the States supervision, so it is possible to cut the flow by closing the pipes. Most of the control however targets data and services. The State can control the information exchanged in several way : in requiring the internet providers and search engines operators to set up filters to restrain the available websites, in imposing technical standards (for instance mandatory registration to access a network), in registering domain names, in tracking contents back to their authors… 

However, States do not have the monopoly of control: the internet is censored by its users as well. People hiding being anonymity or pseudonym to discredit subjects, flood forums or commit cyber-crimes and aggressions prevent the debate and create fears about the internet. The search engines, through the presentation of search results, also create some censorship in systematically directing people to a few websites (most people wouldn’t go to page 21 of Google to check the results given there), and thus reducing the amount of data consulted and channeling/modeling opinions. The preferences settings themselves may have the twofold effect of restricting the data delivered to the –willing- user (and therefore the range of knowledge he could encounter), and defining him better as a target for adds and commercial purposes. The rapid expansion of the internet and its complication may also play against its freedom : few know how to use it well/to its full potential; we use the existing interfaces and services, and do not know the underlying architecture, how to code…Progressively, creation may be controlled by a few who ‘know-how’.

3) If there is already some control, why more regulation?

The States do not have the monopoly of the control, and the States regulations themselves are not uniform. The goal of regulating is then probably an effort by the States to assert sovereignty over this new “territory” and prevent their frontiers and fortresses to fall apart. An international regulation seems however unrealistic since the States have different interests, goals and ideologies when negotiating regulation. Besides, economic interests and globalization may play a capital role against regulation here : as the states are in competition, a ‘Delaware effect’ might be expected. A firm would chose the country which controls its activities the least and opens the most market possibilities. States may be tempted to deregulate to be more attractive, and as internet-based business represent a huge part of the global economy, I would doubt the states would all agree to shut the source down even a bit, and stick to that agreement.

Accordingly, the internet may never be fully free since there are intrinsic obstacles, and its very users impede its freedom, but its regulation is probably not for tomorrow.

The primary problem, as I pointed out in week two, is the reification of "the internet," whatever that is. Because you haven't taken my advice to avoid this reified view of the social condition of pervasive interconnection, you are busy with non-sentences about whether to "regulate" "it," as though the interconnection of people could be either "regulated" or "not regulated" in any conceivable social or legal system.

-- TiphaineLeverrier - 19 Mar 2013



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r3 - 23 Aug 2014 - 19:33:51 - EbenMoglen
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