Sovereignty in cyberspace: Two legal scholars puncture the myth of the borderless, lawless Internet

Eugen Leitl eugen at leitl.org
Sun Jan 15 13:09:53 PST 2006


http://www.boston.com/news/globe/ideas/articles/2006/01/15/sovereignty_in_cyb
erspace?mode=PF

Sovereignty in cyberspace

Two legal scholars puncture the myth of the borderless, lawless Internet

By Christopher Shea  |  January 15, 2006

LESS THAN a decade ago, in his famous ''Declaration of the Independence of
Cyberspace," the Internet theorist John Perry Barlow wrote, ''Governments of
the Industrial World, you weary giants of flesh and steel....You have no
sovereignty where we gather."

How quickly things change. In a 2000 case, a French court ruled that Yahoo, an
American company, had to follow French law and make sure that no Nazi
memorabilia could be purchased online in France via Yahoo auction sites. Yahoo
first decried the effort as censorship, then claimed it was impossible to
identify French Web surfers. Now, just as French judges demanded, Yahoo uses
geographic-filtering software to make sure websites viewable in France comply
with French standards. (It uses that same software to give French viewers
French-language ads.)

China, another flesh-and-steel giant, has also proved itself surprisingly
agile. Chinese officials use Cisco hardware to keep any website with an
''offensive" message from getting through its borders and Microsoft products
to screen words like ''democracy" and ''multiparty elections" from blogs. Last
fall, Chinese officials demanded that Yahoo trace the identity of a journalist
who had leaked information about a Communist Party meeting to an American
website. Yahoo complied, and the man is now serving a 10-year sentence.

In other words, forget all that talk about a borderless utopia and about blogs
dissolving dictatorships-or at least tamp it down. When it comes to the
Internet, ''The story of the next 10 years will be one of rising government
power," says Tim Wu, a former marketing executive for a Silicon Valley company
who now teaches law at Columbia. While some countries are committed to a
fundamentally ''closed" Internet, others want it open. Since technology
permits both approaches, Wu adds, ''I wouldn't be surprised if we saw an
Internet version of the Cold War."

Wu is coauthor, with Harvard law professor Jack L. Goldsmith, of the
iconoclastic forthcoming book, ''Who Controls the Internet?" (an excerpt of
which appears this month in Legal Affairs magazine). The book, to be published
in March, could be called an example of ''cyberrealism" in two ways. It grafts
the hard-nosed ''realist" school of foreign policy-states and state interests
are what matters-onto an analysis of what's going on with the Web today. It
also tries to deflate hype by arguing that most of the supposedly
unprecedented issues raised by the Internet can be handled by existing
concepts in international law.

. . .

Goldsmith, an international law expert hired by Harvard in 2004, has a history
of contrarianism. He has already shaken up his field with his claims that
treaties never force nations to do anything that isn't already in their
interest to do. In ''The Limits of International Law" (2005), cowritten with
Eric A. Posner, of the University of Chicago, Goldsmith and Posner argued that
there are various reasons a country might decide to end torture-if it wants to
take an issue away from dissidents or to gain access to American markets. But
human-rights treaties and ''international law talk" are mostly window
dressing.

That book infuriated some international-affairs scholars, and the new
book-which contains entertaining accounts of key episodes in Internet history
as well as legal arguments-similarly flouts conventional wisdom.

For example, what do you think protects eBay customers from fraud? Is it the
much-lauded ''feedback" system that lets buyers and sellers rate one another's
trustworthiness-the feature the columnist and globalization guru Thomas
Friedman says has made eBay a ''self-governed nation-state." Or can you shop
on eBay safely for the same reason Friedman can walk New York streets without
getting mugged: American laws and American cops?

In fact, Goldsmith and Wu observe, eBay's ''level of integration with and
dependence on law enforcement is remarkable." The company employs hundreds of
internal security experts, who mine data for suspicious patterns of activity
and alert US officials when they detect scams. Indeed, eBay has found it can't
operate in countries-like Russia-without strong legal systems.

The rising importance of national borders creates headaches for online stores
and publishers, but Wu and Goldsmith mostly shrug at the difficulties-unlike
many of their peers. Some civil libertarians find it rather ominous that
foreign nations have claimed their citizens' right to file libel suits against
American websites. But Wu and Goldsmith note that England's wanting to ban
libelous speech (by its standards) streaming across its borders is no
different than America's wanting to keep shoddy Chinese cars from crossing
its. And international law already handles cases-like pollution drift-in which
domestic events have effects abroad.

Wu and Goldsmith argue that a varied patchwork of national laws will be more
representative of peoples' desires than any Internet-wide standard could
possibly be. Filtering software makes it relatively easy for media companies
to keep information out of countries that don't want it-and individual
bloggers are probably unreachable by foreign lawsuits, since they have no
assets in those countries. Plus, people like the bordered, geographically
rooted Internet. What good is that delightful 1-800 FLOWERS ad if you live in
Kenya?

That will surely sound a bit too neat to the cyberlaw theorists who think it
is new that anyone with a website is now subject to the laws of hundreds of
nations.

Still others will contest the book's claims that China has gotten so good at
controlling the Internet that its liberating possibilities are effectively
counterbalanced. ''There's no doubt the [Chinese] government is tightening
controls on the Internet," says Robert Wright, author of ''Nonzero: The Logic
of Human Destiny," ''and there's a reason for that: The old controls aren't
working."

It's too soon, Wu responds, to know whether China will master thought control
on the Internet. He thinks it might. But the authors' larger point is
unassailable. National laws, national borders, and physical bodies matter a
lot more online than people used to think. ''There is this surprising lasting
relevance to physical coercion," Wu says. It still matters-for online writers,
eBay scamsters, and Chinese dissidents alike.

Christopher Shea's column appears biweekly in Ideas. E-mail
critical.faculties at versizon.net.

--
Eugen* Leitl <a href="http://leitl.org">leitl</a> http://leitl.org
______________________________________________________________
ICBM: 48.07100, 11.36820            http://www.ativel.com
8B29F6BE: 099D 78BA 2FD3 B014 B08A  7779 75B0 2443 8B29 F6BE

[demime 1.01d removed an attachment of type application/pgp-signature which had a name of signature.asc]





More information about the cypherpunks-legacy mailing list