LAW-MAKING AUTHORITY IN THE ONLINE WORLD

LAW-MAKING AUTHORITY IN THE ONLINE WORLD

1. A belief the law is about command and control – this theory tells us noting about the authority of law.

2. Natural law – seeks an external test to see if a state command is law. This is not part of modern legal theory.

3. Positivism – looks to see what the states constitution and institutions recognise as law. Look at procedure and processes. This does not say a lot about law-making authority in the online world.

NATURAL LAW

• Law needs to be tested on morality

• Fuller says we don’t have to look to enteral morality but an internal morality for a non-religious test and the parable of Rex the king.[1]

• In order for something to conform to the rule of law, that law will have to reach standards publicity, consistency otherwise it not a proper law. However, there is no shared external test that everyone in cyberspace and sign up to.

• Then if they pass the test it is a valid law – does this help us in cyberspace?

POSITIVISM

• Command of the State are laws

• All laws are binding on a States subject. Positivism has a very strong territorial basis. Lawmakers are elected and some level of participation. By virtue of being members of the state they agree to the state governing them.

• A legitimate community. HLA Hart (the Concept of law) says the state only continues to exist and have legitimacy because of support. So because of the fact they support it continued existence gives justification to their obedience to its commands.

  • If people to adhering to the rules then there is a revolution

  • Not all commands of the State are not laws

  • Two tests apply:

    • Procedural test: has the relevant procedure been applied

    • Observational test: the rule of recognition will tell us that this is a law. We look at how institutions behave to that law.

    • Positivism talks about where authority comes from.

CYBERSPACE

• Natural law does not help with cyberspace because of external morality

• Positivism only works inside a States territory – its doesn’t tell us about a hierarchy of states

• Traditional legal theories do not help us

• Public and private international law does not provide solutions to cyberspace. So is there a different way?

LEGAL ATHORITY IN CYBERSPACE

The reason the above theories of law don not work is because they start from the perspective of the state, within its geographical territory and determine what laws citizens ought to obey. This does not tell us anything if they are not in the state and more than one state is making claims against them.

Which laws do we obey as the E commerce actor? (Sitting outside the state and facing claims from other states). Rules of each state specify which rules and the level of targeting will apply at any given time.

The cyberspace actor will need to choose which claims they accept and which ones they reject. In cyberspace there is a legal system where they enter it and have to analyse which claims they will choose to obey. They are an overlap of systems and actors start from a normative position of wanting to act lawfully and will likewise accept some authority of the claims they receive. This is actual authority which derives from (general) acceptance of a claim. This is a very different perspective from authority as seen from within a jurisdiction (territory).

THEORETICAL APPROACHES TO CYBERSPACE

Cyberanarchy

This takes a very simple approach no state has authority to regulate cyberspace activities, because cyberspace is not in their territory and it transcends any State. Because no state has any authority over it has to regulate itself. It has to grow its own institutions within its own institutions within this new space and those institution are the only ones that have authority to decide what happens in cyberspace. This theory is quite radical and rejects the State completely it states only the cyberspace community has legitimate authority to regulate. Johnson and Post argue national law has no authority in Cyberspace.[2]

Ø A state’s assertion of authority to control in cyberspace conflicts with other states’ monopoly rights to exercise control over their citizens

Ø Use of effects doctrine is illegitimate

• Online activities have no greater effect in any one state than in the remainder of the world

Ø Legitimacy derives from consent of the governed

• Non-citizens in cyberspace have not consented and cannot participate (eg via elections)

Ø Legitimacy comes from consent - thus only self-governance can have authority

Cyberpaternalism

This is not really a theory but comes from the idea that is you are powerful enough you can enforce your own law. Cyberspace is not outside the preview of the traditional State, because the State has enforcement powers against things in their territory it can use in cyberspace. They can use this power to assert authority of their own laws. One practical example is the case of US Government under its anti-terrorism legislation wished to cease data relation to a European individual that was held by Microsoft on their servers in Ireland. Management of that data was by Microsoft based in the US that had remote access to those servers. The US courts held Microsoft did not have to disclose data which forced the US Government to lay down legislation to counter that decision. The state has supreme authority over its community.

Goldsmith and Wu argue[4]

Ø In the physical world law is not tied to territory

Ø Cyberspace activities have physical locations

• Persons and equipment

• Place harm is suffered

Ø Harm in the jurisdiction legitimates assertion of authority

Ø Actual authority is achieved through enforcement power

Lawrrance Lessig argues the things that influence what cyberspace actors do there are norms, the markets control what actors can do. Cyberspace runs entirely on code and this controls the actor. Law could exercise even more control by considering what code does and controlling what code does affects the actor. Stops can simply stops an actor from doing things and control in a more effective way.[5]

Nonetheless this can be opposed by saying code in not as controlling as we think it is because code controls are always trying to be countered. For example if you cannot use a site in a geographical location a proxy server site can be used to get access.

Network communitarianism

This comes from the work of Andrew Murry.[6] In Rethinking the jurisprudence of cyberspace they argue authority derives from consent of the regulated community. The only basis for authority is from the consent of the community it regulates. Non State law makers also have a lot of authority because of the general acceptance. The Ebay or Amazon market dispute resolution mechanism, in a conflict of laws type situation who decides, both the buyer and sellers have agreed to the law of the market place as a better place than either countries laws or authority to decide the case, hence regulatory settlement negotiated within that community. Community interaction produces regulation.

Murry and Reed argue[7]:

• Law is not just a straight command + obedience – this is a constantly changing target that depends on the regulatory settlement within that particular regulatory law system.

• Regulatory settlement derives from constant communication (negotiation) within a community

• Thus authority derives from acceptance of regulatory settlement by that community – which means we have a system of legitimating communities. It has to be an accepted rule between the community and the lawmakers which change.

• The authority of law comes from making the settlement and agreeing with it. We as a group subject to the law decide that the law is wrong then stop obeying it then the law starts to lose authority, until it is changed. Law is something which is fluid and changing. A complex idea.

Concept of legitimating communities – who is the community? The current discussions about online harm. Typical examples are hate speech, online bullying, etc. The UK could just pass a law to say this content should not take place online. The problem with that is that the UK needs the help of the cyberspace communities. It needs to convince people who are not in the UK to if there online postings are to be available to the UK then there are things they should not be doing. More importantly that UK has to convince the social media operators to comply with UK regulation. Otherwise the UK has a very stark choice if Facebook will not comply with whatever the UK comes up with in regard to online harms then either UK will have to block Facebook in the UK, or Facebook takes a decision to cut off the UK. Neither is a suitable outcome for a piece of legislation. The only thing the UK Government can do is apply pressure that Facebook should play a part in cutting done harm. The current proposal is there will be a regulator that will have a principle to minimize online harms. Then a regulatory settlement will emerge where there will be a compromise between the competing interests.

This is a more accurate representation of what actually happens in cyberspace.

CONCLUSION

Murry and Reed have reacted to Cyberpaternalism and Cyberanarchy and to the States idea that the state has absolute authority because it has a constitution and under that constitution its laws have authority and under public and private international law it is entitled to apply them to cyberspace. Murry and Reed have said this is not enough we have to go further and say what is the legitimated community, has a regulatory settlement been reached, does the law reflect that regulatory settlement? If it does then you have authority in cyberspace. If this process has not been carried out then it is a matter of luck if it creates a command that people are going to obey.[8]

FOOTNOTES

[1] Fuller, L. L., In The Morality of Law: (Revised Edition) (New Haven; London: Yale University Press, 1969) Retrieved January 7, 2021, from http://www.jstor.org/stable/j.ctt1cc2mds.1 [2] Johnson, David R., and David Post, "Law and borders: The rise of law in cyberspace", Stanford Law Review 48(5) (1996), 1367-1402 [3] Barlow, John Perry, "A Declaration of the Independence of Cyberspace", Duke Law & Technology Review 18(1) (2019), 5-7 [4] Jack Goldsmith & Tim Wu, Who Controls the Internet? Illusions of a borderless world (New York, Oxford University Press 2006) [5] Lessig, Lawrence, Code: And other laws of cyberspace, (ReadHowYouWant.com, 2009) [6] Chris Reed & Andrew Murray, Rethinking the Jurisprudence of Cyberspace (Edward Elgar, November 2018) [7] Chris Reed & Andrew Murray, Rethinking the Jurisprudence of Cyberspace (Edward Elgar, November 2018) [8] Reed, C. Making laws for cyberspace, (Oxford University Press, 2012), chapters 5 and 6