Jusletter IT

In 1996 D. R. Johnson and D. G. Post in “Law and Borders - the Rise of Law in Cyberspace”¹ stated a fact that was yet to be realized by other legal scholars: traditional jurisdiction and democracy are not fit for regulating cyberspace. As they rightly noted, the Internet: “radically subverts a system of rule-making based on borders between physical spaces, at least with respect to the claim that cyberspace should naturally be governed by territorially defined rules.”² Although it was at that very point in time that the emerging idea of cyberspace law was subject to strong criticism,³ Post and Johnson proved their analysis to be constructive. Their 1998 follow up paper, entitled “The New ‘Civic Virtue’ of the Internet” included a detailed proposal for governing the ungovernable: they described a greatly democratic, “Complex Systems Model for the Governance of Cyberspace”⁴ based on a common “civic virtue”⁵ rather than solely on national, statutory law and its enforcement. They argued that cyberspace required a new, tailor-made solution, not an analogy-based application of traditional laws. They advocated for a unique “Law of the Horse”, a concept judge Easterbrook ridiculed ferociously in 1997.⁶ The 1998 Post and Johnson paper focused on identifying particular principles common to on-line behaviors and recognizing the legal and practical meaning of electronic boundaries. The two combined would – in the authors’ opinion – help identify, separate and shield individual “areas” of cyberspace. Such areas, occupied by cyber-communities (groups of Internet users, sharing common ethical standards), would be resembling of traditional (non-virtual) societies. The novelty of their proposal was enshrined in the fact that rather than seeking a universal compromise for a statutory law consensus they called for “a form of civic virtue that can tolerate continuous conflict and can reside in the very architecture of a decentralized, diverse, complex adaptive system”.⁷ Values common to all those communities would than allow to identify a narrow catalog of globally shared principles, created “from the bottom up”. Just as in traditional societies members would be bound by the particular values, shared by the on-line communities they decide to “enter” (just as residents are obliged to respect the national laws of their countries of residence). In parallel, at the “universal” level, they would also be required to respect the values recognized by all netizens – those constituting the elements of the civic virtue.

How would this “requirement” of obedience of those rules be enforced? The authors claimed that internalization and legitimization of the values enshrined within the civic virtue concept would be sufficient. They argued that once the governed felt that the values were their own ( “internalized” them) and recognized them for their law that could be rightfully enforced in the name of the community (“legitimized” them) the system would work. For that reason alone, despite due admiration for its authors, that concept must be recognized as too idealistic. The world in 1998 was just past what-became of the first European fascination with all-for-one and one-for-all concept – the Berlin-wall was down and the “detainees” of the first socialist (and then communist) ideals were freed onto the capitalist world. The ideals of civic virtue seemed much alike those of the first socialist, fighting for common well-being in the name of others. History showed human beings were not mentally fit to work together for “common” good – they’d rather look after individual benefits. Similar arguments were named when the Post and Johnson concept was being criticized. The critics blamed the concept for lacking the sense of reality⁸ (since events in cyberspace were always caused by individuals, acting from physical territories through elements of physical infrastructure, therefore subject to national laws) as well as social awareness. It would be difficult to depict on-line communities, so remote that they would not interact. What is more – they could hardly be governed by individuals so morally stringent not to give into the temptations authority brings.⁹ To implement Post and Johnson’s idea one would have to guarantee for impeccable characters of the leaders and absolute obedience of the followers. Assuming that to be possible seems utopian – even in cyberspace, they are all still just human.¹⁰ As brilliant as it might seem, the concept had this one, however crucial flaw – it was against (egotistic) human nature. Post and Johnson were not able to predict what the future was to hold,¹¹ however the next decade brought the missing piece of their idealistic puzzle – a real-life motivation for people to work together on-line and respect jointly elaborated rules and principles. The future brought us the “hybrid economy”.

2009 brought two books discussing the issue in detail. L. Lessig described how it works in the copyright arena in his latest book, “Remix”, giving it a much revealing subtitle: “Making Art and Commerce Thrive in the Hybrid Economy”. In the book he names hybrid economy the economic model best suited to reflect current trends in mass online interaction. He defines this model as simultaneously combining elements from two well established economic regimes: the commercial economy (where the value of goods or services may only be denoted in money) and the sharing economy (like love or friendship, the value of which may never be expressed in hard currency). This originally dichotomous dissection (where an individual relationship would be either commercial or sharing) was harshly disrupted by the cyberspace and relationships its “netizens” developed. Cyber-communities operated in ways unknown to (or at best unpopular in) the off-line world. Their members “shared” time, knowledge, ideas, mutual support, companionship, exchanging it all free of charge, but as time proved and experience showed, actual “commercial” success arising of such “sharing” was a possibility. Successful social endeavors such as Wikimedia or Linux originated from few enthusiasts spending too much “free” time sharing their passion and evolved into flourishing companies, bringing hard cash. That’s how hybrid economy was born. It combined the uncombinable – what once was “sharing” could now be calculated “commercially”. The invaluable became digits on a bank-account.

As another author of a 2009 book on hybrid-economy, Y. Benkler,¹² puts it, in commercial economies it was the price that was the original source of information on the value of goods and services. In sharing economies that role had to be adopted by a different factor.¹³ Deriving from his earlier work,¹⁴ in “Wealth of networks”¹⁵ Benkler proclaims a new stage of societal evolution: the era of network information economy, based upon what Benkler calls “peer production”, generating new resources, incalculable in hard currency. This model – he prophets – will actually dominate the world markets in the near future. It’s no longer the current exchange rate of EUROs to USDs that will tell us the value of a service or item. Their worth will be set by the amount of time needed to attain them or total of work required to produce them. The “currency” of such exchange will be the actual voluntary contribution of “netizens”, willing to supply their efforts and time.¹⁶ The author names numerous cases where large groups of volunteers provided long hours working together to reach a common goal. Those several examples contradict the fundamentals of economics.¹⁷

Both Lessig and Benkler argue, that no laws or commercial barriers will be able to stop this economic revolution from unfolding. As Lessig rightfully notes: “past survives only if it can beat out the future”.¹⁸ He claims that the current clinging of national authorities and certain professional lobbies to rigid and outdated legal concepts is bound for failure. Not only is it irrational, it’s also not pragmatic.

The triumph of Wikimedia (built on the global success of Wikipedia) is the leading case for all hybrid economy apologists. Wikipedia was also the inspiration of a more detailed economic analysis, that appeared around the same time two previous authors disclosed their views. Another neologism was created to describe the current economic trend originating from on-line collaboration. Wikinomics¹⁹ is both: the title of a 2008 book by D. Tapscott and A. D. Williams and the name of an economic concept they had presented therein. Although some claim their analysis too superficial, all agree its core ideals are revolutionary. Those ideals include four core principles of Wikinomics: openness, peering, sharing, and acting globally.²⁰ The authors aim to convince businesses to introduce radical changes in the manner they play the market: to disclose their trade secrets, to act as their “employees’ ” equals, to share their strategies and ideas and to involve as many participants as possible (regardless of their individual skills) to face business tasks. Such a model gives more variety in problem resolution and offers faster and more versatile approach.

All those arguments are well summarized by Benkler. He claims that the goal of a contemporary government ought to be the assessment of needs and values crucial to the community it represents.²¹ Communication is the basic unit of sociological existence.²² Therefore in times of globalization it is necessary to look back into the universal jus naturale. This will allow us to establish a set of rules and values recognized throughout all communities represented in cyberspace, for any national law will eventually have its effects on all of them. Benkler sees the era of global peer production as an unique opportunity to reassess the set of values currently recognized universally. With this suggestion Benkler directs us to a turning point in evolution of international law. As may be assessed based on the analysis presented hereinabove, hybrid economy comprises elements characteristic of both: commercial and sharing economies. Therefore a legal mechanism suited for regulating this “hybrid” should also derive from both sets of values, specific to regulating each of those two so different economic models. What are those systems? Commercial economy is traditionally ruled by law: be it statutory acts on companies law or civil law agreements. Since the value of a commercial relationship could be expressed in money, disputes over its particular amount would be settled primarily based on acts of statutory law. Sharing economies – as quite the opposites - usually go by without laws. It is up to the community itself to develop their standards and enforce them through community ethics, in order to “regulate” the sharing. To exemplify this division, one could point to a clear line drawn between love and marriage, where love would serve as an example of a sharing economy, with no hard lines drawn, while marriage, based on a civil law contract, could be presented as an example of a commercial relationship. Since hybrid economy comprises both: money and sharing, therefore both: law and ethics respectively must be taken into account when setting a regulatory standard for hybrid economy. Jus Internet is a proposal realistically combining those two elements.

While identifying the rules of law seems less of a challenge, defining the universal principles of ethics is highly difficult. Nonetheless humans have attempted to define the values that guide them since the very beginning of civilization. Roman jus gentium was built upon values recognized by all people, since they derived from natural law (jus naturale).²³ It was created to provide a basic framework of reference for individuals representing numerous heterogeneous provinces of the Roman Empire. Those individuals, coming from different cultural and historical backgrounds, were forced to interact when engaging in economic transactions or other social relations. In order to find a common ground for all those varying settings jus gentium was prospected to reflect human nature itself. Therefore it was based on the sense of justice and fairness, as the basic common ground for all human interactions. The term was used to describe customary principles applied to relations between foreigners (ones not holding Roman citizenship) and Roman citizens.²⁴ The theory of jus gentium rested upon two pillars: trust (fides) and equity (aeguitas). Contents of its particular norms were derived from two regulatory systems: jus naturale and religious law. Initially jus gentium operated as a common custom. With time it evolved into binding customary law, with its regulations respected by representatives of various cultures and social systems. Despite being an exceptional structure far ahead of time, jus gentium did not save the Roman Empire from its doom. However, unlike the Empire itself, it survived. Jus gentium evolved into the law of nations and is still being applied today as public international law.

This evolution teaches us a good lesson on regulating cyberspace. We can easily describe ways in which public international law resembles its Roman origins. The differences come down to methods through which the content of principles is being determined, rather than the contents themselves. Nowadays, deliberations on what’s fair and just are left to ethics rather than to religious laws. Therefore when attempting to use the Roman experience of making laws to be applied across a wide span of cultures, one would also need to identify the basic scope of principles, recognized by all the governed. What once was done with the use of religious law and jus naturale, now is the subject of debate among legal philosophers discussing ethics. Nowadays it would be through identifying universal ethical standards, common to all (cyber-) communities that a global consensus satisfying all participants of the electronic exchange could be reached. This basic ethical standard might reflect what Post and Johnson once called “civic virtue”. The development of hybrid economy would set their concept free from its biggest fault – the lack of effective authority. It would be the joint success of all participants – both social and economic, that would complement the civic virtue with executive powers.

Should such a set identified ethical rules gain community acceptance and become a common custom, the next step could be to give it a legally binding power. Just as is the case with customary international law, it could gain recognition from national or international courts, as an element of good faith, good business practice, fairness or equity. What once was a set of community standards would become jus Internet - the customary law regulation of cyber-communities, built upon internalized by the community and legally enforceable ethical rules.

Why should jus Internet work? One could just as well ask why international public law has been working for so long. It originates from strong customary background, just to name the evolution of maritime law or the law of the treaties. What now is a self-contained regime, once was a set of guidelines followed by sailors or diplomats respectively. So why does international law work? Why do states ratify treaties and decide to give up parts of their sovereignty? Explanations are numerous. They include e.g. a recourse to natural law - states are deemed to obey international law and certain “natural” rights of other states just as people obey basic human rights of their own kind, it’s just within their construct. Others explain that states develop international law in their common interest. This simplest justification also seems the best suited: states observe international law because it pays off. Pacta sunt servanda, the principle fundamental to every international law commitment, means that once a state respects obligations towards its counterparts it can also reasonably expect them to do the same. This brings foreseeability of the actions of others. Respecting universal rules grants a state a secure role in the execution of power held by the international community as a whole. Should a state go against its universal obligations – as a rule it will have to face sanctions. It just pays off to be a part of a strong, uniform group.

This very feature could be used for regulating the global cyberspace. Trans-boundary communities such as the Wikipedia or Creative Commons and companies like Google have proven this common interest concept to work also on-line.²⁵ Their members or participants play by the rules of the community not in fear of sanctions but because they want to be a part of something bigger. They know that their power is actually the power that they hold as a group. For that group to have this power – it need to operate smoothly and that means being based upon solid foundations of clear rules, principles and procedures. Just as is the case with international law – the process of setting those rules and procedures is never finished. However the more complete it is – the stronger the community.

How to set those rules and procedures? Following the 1996 conclusion by Post and Johnson (that traditional democracy is insufficient for cyberspace) J. Zittrain offers a model for democracy modified accordingly to the specifics of cyber-communities. Referring to Wikipedia, he names its model of internal organization a semiotic democracy.²⁶ Semiotic democracy is different from traditional democracy in a sense that it does not require the simple majority of votes but rather it follows the strongest arguments. Decisions are made not just by raising hands, but rather by raising most convincing arguments. The opinions recognized by the majority of the community become new community standards. Perhaps such a model of identifying rules common to cyber-communities would allow for identification of the contents of jus Internet. The question of a forum appropriate for such a discussion remains unanswered, although numerous options remain open: from the IGF, through Council of Europe Parliamentary Assembly, all the way to UN International Law Commission.

Jus Internet combines two crucial elements of hybrid economy. The concept sets off as a soft law proposal based on universal ethical standards recognized by netizens worldwide. Through judicial recognition it evolves to a legal model fit to meet the economic challenges of cyberspace. It offers the flexibility of internal, ethical rules developed by way of semiotic democracy, built upon “civic virtue” argued for by Post and Johnson. At the same time it reflects the commercial economy needs, giving a prospect for a statutory law regulation. It could serve as the stepping stone for an treaty-based regulation of cyberspace. The customary rules, identified within jus Internet might serve as an element for building an Internet Framework Convention, putting cyberspace next to the open sea, outer space or natural environment, all initially regulated by international customary law, and presently – through self-contained treaty-based regimes.