Emerging from the collapse of the Soviet Union, we thought the growing monster of the internet would be the death of government. Tired of the governments of flesh and steel, we thought this would be our salvation from their exasperating instincts of command and control.
We thought boundaries would be erased, bureaucracies would collapse and life would be as easy as fast download speeds.
As Professor Lawrence Lessig wrote in Code Version 2.0, code would be the new law. But as time has shown, these old instincts of command and control would be integrated in the new order. Our living hells and distant heavens would not be erased leaving us at the very place we have been — Earth.
As such, governments would not collapse, bureaucracies would not disappear and our lives would remain much the same — save for a peculiar misguided assumption in the way governments would exercise control over the new domain.
A government would seek to control the actions of the citizenry as though it owned cyberspace. In the artificial sense, cyberspace is akin to the skies or the seas — though subject to national boundaries, they cannot be ‘controlled’, or ‘restricted’, in the same manner as citizens.
A lack of understanding of the internet’s structure leads governments to prescribe hefty penalties for ‘crimes’ — as though cyberspace is a certain street corner vulnerable to the boot and shout of the tyrant.
If, for the sake of argument, we would concede that the crimes and hefty penalties are justified, there still exists a misguided reasoning on enforcement and deterrence.
To borrow from Jack Goldsmith and Tim Wu, there are limits to the amount of deterrence and punishment we can install to prevent crime.
If parking illegally and bank robbery both meant 20 years in prison, then “the law would lose its ability to send a message about what citizens should not do and what they really should not do”.
Furthermore, governments prescribe these penalties with the misapprehension that the nature of cyberspace is necessarily immutable and cannot be changed.
In the traditional sense, law is an order backed by sanction. The law seeks to affect behaviour in real space by ensuring citizens know that the State can make good its threat of violence, deprivation of liberty or imposition of fines.
NATURE OF CODE
To regulate behaviour in cyberspace, the law is not necessarily the solution. Among other factors, the law is effective in real space because the nature of real world factors cannot easily be changed — for instance, disguising that you are a child to buy alcohol.
Cyberspace, on its part, does not have a ‘nature’. It assumes the nature of the code baked into it and, thus, use of code is one of the ways we may regulate behaviour online rather than throwing the law at every infraction.
Would you fight sea waves with a sword? Would you fight the winds with a spear? Would you paint with a hammer?
These questions should be at the fore of legislators and courts alike when considering regulation of cyberspace behaviour.
FORCE AND REPRISAL
The law is a tool, but is it the right one? The law is effective at times, but would it match up to the multijurisdictional nature of cyberspace?
To the man with a hammer every problem looks like a nail. To one armed with the law, and the law alone, every problem must seem fitting for force and reprisal. The freedom of the press and free speech are victims of this kind of approach as a result of viewing cyberspace in purely physical terms.
Governments have simply not appreciated the nuances that would be appropriate in addressing this medium.
Mr Rosana is a legal assistant at Nation Media Group (NMG). [email protected] Twitter: @nerdyfication