Cyber-regulatory theories: between retrospection and ideologies

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by Luana Lund, specialist in telecommunications regulation (ANATEL, Brazil)
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This article presents a brief history of some of the main theories about internet regulation to identify ideological and historical relationships among them.

In the 1980s, the open-source movement advocated the development and common use of communication networks, which strengthened the belief of the technical community in an inclusive and democratic global network [1]. This context led to the defense of full freedom on the internet and generated debates about the regulation of cyberspace in the 1990s. In the juridical area, Cyberlaw movement represents the beginning of such discussions [2]. Some of these theorists believed in the configuration of cyberspace as an independent environment, not attainable by the sovereignty of the States. At that time, John Perry Barlow was the first to use the term “cyberspace” for the “global electronic social space.” In 1996, he published the “Internet Declaration of Independence“, claiming cyberspace as a place where “Governments of the Industrial World […] have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear […] Cyberspace does not lie within your borders” [3].

Barlow’s ideology also caught the attention of the legal community, prompting academics David Johnson and David Post to publish the article “Law and Borders – The Rise of Law and Cyberspace” [4]. This article was the first work to present a legal interpretation of classical cyber-libertarianism, stating that traditional state sovereignties, defined by territorial boundaries, would not function appropriately in cyberspace. It would be a distinct place from the real world, with its sovereignty and legal jurisdiction, regulated by norms defined by the digital community.

In response, considerable academic works considered cyberlibertarians’ view simplistic and had a strong liberal stance regarding the regulatory system. This movement has received several names, but they are generally referred to as “cyber-paternalists”, divided into two sub-schools [5]: (i) cyber-realism or the “internet fallacy” school, for which cyberspace may be regulated based on the traditional perspective of jurisdiction and law (this sub-school includes non-exceptionalists, such as Jack Goldsmith [6] and Chris Reed [7]); and (ii) “techno-determinism” or the Berkman school, for which the internet exceptionalism stems not from the impossibility of regulating cyberspace, but from the fact that its enforcement tools do not exactly correspond to the classical regulatory modalities (Joel Reidenberg [8] and Lex Informatica).

Lawrence Lessig was the most prominent cyber paternalistic scholar, for whom cyberspace requires re-reading traditional regulatory performance since it needs to recognize the regulatory role of code (“code is law”). For Lessig, internet characteristics derive from the choices regarding its (i) Architecture, which exert regulatory effects on cyberspace, acting together with (ii) Markets, (iii) Law, and (iv) Norms [9] towards a pathetic dot, the regulatee.

Lessig’s work has influenced prominent scholars in the first and second decades of the 2000s. These scholars have recognized the role of internet architecture in asserting rights. They have also stressed the importance of rethinking the fundamentals of regulatory communication policies in the internet age. Berman [10], for example, cites Yochai Benkler [11], Jonathan Zittrain [12], and Johnson, Crawford, and Palfrey [13] as representatives of a third-generation, prominent in the early 2000s. They merge the two previous generations because, like libertarians, they advocate there is something unique about the internet, considering it enables different connections and it generates creativity and potential for political, economic and cultural transformations. On the other hand, similarly to some paternalists, they also recognize the role of internet technical architecture and private sector power.

At the end of the 2000s and beginning of the 2010s, Andrew Murray (2007, 2011 and 2013 [14]) noted that cyberspace is a place of communication and discourse, besides being composed of geography and structure. The author also criticizes the idea of the four regulatory modalities influencing a pathetic dot (Lessig’s model) and advocates the construction of a system endowed with dynamism and communicational capacity, escaping from the mechanical analysis. This change of perspective to consider communicative theories (Luhman and Habermas) presents a more dynamic model of cyber-regulation, the so-called Network Communitarianism. It does not represent an isolated individual in a fixed environment, but explains the dynamics of communication within the community that inhabits the environment. Thus, the regulatee appears as a member of the dots community that grants or removes legitimacy to external regulatory actions. In this way, Murray exchanges the pathetic dot for a community or matrix of points that share ideas, beliefs, ideals, and opinions. In addition, it recognizes that the regulatory arrangements enumerated by Lessig derive their legitimacy from the community itself or the matrix of points. Hence, Murray considers Lessig’s four regulatory modalities as a mere re-reading of previous regulatory models and presents nodal governance as a newer and more dynamic alternative, considering the complexity and scope of cyberspace and proposing a more flexible regulation model for the internet. Therefore, the key is to recognize that instead of counting on the effectiveness of direct legal-regulatory controls, it is necessary to develop a hybrid system, where legal restrictions are part of the regulatory network or matrix.

In addition to Murray, in the 2010s, authors such as Barbara Van Schewick (2010 [15]), Laura DeNardis (2012 and 2014 [16]) and Francesca Mussiani (2016 [17]), Ian Brown and Christopher T. Marsden (2015 [18]) also adopted the role of cyberspace architecture over the exercise of power in the internet as their analytical premise.

Thus, as an example, it is possible to understand the theoretical evolution of cyber-regulatory authors from the evolutionary decades of the internet itself:

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Despite this possible historical linearity, all the theories in question are still current and may be used to explain the reality generated by the internet. Although there is no consensus among scholars about the real impacts of current changes, all authors agree on one point: the recognition of the unique character of information and its importance to the contemporary world. The consensus is that the internet brings profound changes, but it stops at this point. Like every new technology, there are several issues, including the need for rules, or the establishment of new rules, or application of existing ones to accommodate possible effects of disruption to society.

According to Baldwin, Cave, and Lodge, “different theories exist at different levels of generality and hold variable applications and uses as explanatory tools” [19]. Therefore, the theoretical arguments to explain the ordering of the Internet are vast and varied. In this aspect, the role of ideologies is highlighted, since they also appear as lenses for understanding reality. In addition, the current scenario generates transformations even in traditional ideological axes. As a result, there is fragmentation of the understanding of internet regulation in an ideological battlefield which is still open.

Picture credits: Rope by Kham Tran.

[1] TSATSOU, Panayiota. Internet Studies: Past, Present and Future Directions, Routledge, 2014, p. 15.

[2] BERMAN, Paul Schiff. Law and Society approaches to cyberspace. Ashgate: Publishing, 2007, p. xi-xiii.

[3] BARLOW, John Perry. Declaration of the Independence of Cyberspace. Fonte: https://www.eff.org/pt-br/cyberspace-independence

[4] JOHNSON, D. R.; POST, D. Law and borders: the rise of law in cyberspace. Stanford Law Review, v. 48, n. 5, pp. 1367-1402, 1996.

[5] MURRAY, A. Nodes and gravity in virtual space. Social Science Computer Review, v. Ph.D., n. 4, 2011, p. 199

[6] GOLDSMITH, Jack L. Against Cyberanarchy, University of Chicago Law Occasional Paper, n° 40 (1999).

[7] REED, Chris. Law: Text and Materials. Cambridge University Press, 2 ed., 2004.

[8] REIDENBERG, Joel. R. Lex Informatica: The Formation of Information Policy Rules Through Technology. Texas Law Review, v. 76, n° 3, 1998.

[9] LESSIG, Lawrence. The Law of the Horse: What Cyber Law Might Teach. Harvard Law Review, n. 113, ver. 501, 1999, p. 506-507.

[10] BERMAN, Paul Schiff. Law and Society approaches to cyberspace. Ashgate: Publishing, 2007, p. xviii.

[11] BENKLER, Y. From consumers to users: shifting the deeper structures of regulation toward sustainable commons and user access. Federal Communications Law Journal, v. 52, n. 3, pp. 561-579, 2000.

[12] ZITTRAIN, Jonathan, The Future of the Internet and How to Stop It, New Haven & London: Yale University Press, 2008.

[13] JOHNSON, David R., CRAWFORD, Susan P. e PALFREY, John G. Jr. The Accountable Internet: Peer Production of Internet Governance. Virginia Journal of Law and Technology, 2004, pp. 1-33.

[14] The Regulation of Cyberspace: Control in the Online Environment. Routledge-Cavendish, 2007. Nodes and gravity in virtual space. Social Science Computer Review, v. Ph.D., n. 4, 2011. Information Technology Law: the law and society. 2 ed., Oxford University Press, 2013.

[15] VAN SCHEWICK, Barbara. Internet architecture and innovation. The MIT Press Cambridge, Massachusetts, 2010.

[16] DENARDIS, Laura. Governance at the Internet’s Core: The Geopolitics of Interconnection and Internet exchange points in Emerging Markets. TPRC: 40th Research Conference on Communication, Information and Internet Policy, 2012. Global War for the Internet Governance. Yale University Press, 2014.

[17] DENARDIS, Laura. MUSIANI, Francesca. Governance by Infrastructure: Introduction in DENARDIS, Laura; MUSIANI, Francesca; COGBURN, Derrik L.; LEVINSON, Nanette S. The Turn to Infrastructure in Internet Governance. Palgrave MacMillan, 2016. ______; ______; COGBURN, Derrik L.; LEVINSON, Nanette S. The Turn to Infrastructure in Internet Governance. Palgrave MacMillan, 2016.

[18] BROWN, Ian, MARSDEN, Christopher T. Regulating code: good governance and better regulation in the information age. Massachusetts Institute of Technology, 2013.

[19] BALDWIN, Robert. CAVE, Martin. LODGE, Martin. The Oxford Handbook of Regulation. Oxford University Press, 2 ed., 2010.

The author holds a master’s degree in Law from the University of Brasília (UnB). Post-graduate degree in Economics and Business Law from Fundação Getúlio Vargas (FGV). Bachelor of Law from UnB. Technical ICT Advisor of the Leadership of the Social Liberal Party in the Brazilian House of Representatives. Specialist in Telecommunications Regulation in the National Telecommunications Agency (Anatel). Former General Coordinator of Cyber ​​Affairs at the Digital Policy Secretariat and Former Project Manager at the Telecommunications Secretariat of the Ministry of Science, Technology, Innovation and Communications. Former advisor to the Board of Directors of Anatel.

 

 

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