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We Are All Internet Exceptionalists Now

Milton Mueller

The Stop Online Piracy Act (SOPA) and its defeat call attention to a delicious irony in public discourse on Internet governance. Even those who don't want the Internet to be an exception from traditional forms of regulation and law are forced to admit that something new and exceptional must be done to bring it under control, such as massive departures from traditional concepts of territorially bounded sovereignty through the use of in rem jurisdiction. Reinforcing the irony, these attempts by the anti-exceptionalists to subordinate the Internet to established institutions immediately locks them into conflict with a highly mobilized, highly transnational community of Internet users and service providers who vow to resist those controls. The resistance comes precisely because the mobilized community believes that the controls cannot be applied to the Internet without threatening to fundamentally alter its status as an open, innovative and — dare we say it — exceptional space. In other words, we are all Internet exceptionalists now.

You know that the anti-exceptionalists have raised the white flag of surrender when they are forced to whine that the thousands of web publishers who went dark are "abusing their power” — thus admitting that a critical mass of Western society's eyes are turned toward the Internet and that the people who occupy and publish and interact in that globalized space constitute enough of a cohesive community to collectively turn against those who threaten them.

It doesn't matter whether one is on the pro-control or anti-control side of the spectrum; governing the internet forces a choice upon one: either go for new and unprecedented forms of technical intervention and transnational political cooperation, or go for some kind of ratification and institutionalization of the Internet's special status as a zone for the free flow of information and a diminished role for territorial government and traditional informational property rights.

Mind you, one needn't be a cyber-utopian to be an Internet exceptionalist. In other words, you don't have to believe that the Internet will by its very nature make politics fair and democratic and that the good guys will always win. SOPA or some equivalent could rise again, in some other form. Some key actors could be bought off with some concessions in the new legislation. The mobilized community's resolve could weaken over time, as it grows accustomed to things. We need to be heedful of Benkler's warning that as the networked environment resists control, there will be strong pressures to suck ever more of it into the law enforcement vortex. But surely, after 15 years of these battles (starting, roughly, with the CDA mobilization of 1996) we can dismiss these jaded admonitions that Internet regulation is just business as usual. If the Internet stops being an exception, we will have no one but ourselves to blame.

By Milton Mueller, Professor, Syracuse University School of Information Studies. More blog posts from Milton Mueller can also be read here.

Related topics: Censorship, Internet Governance, Law, Policy & Regulation

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Comments

Milton - An excellent thought-provoking article and John Curran  –  Jan 26, 2012 9:41 AM PST

Milton -

An excellent thought-provoking article and a topic worthy of discussion.  One obvious question raised is to what extent do we have to reinvent all of the various mechanisms (for governance & enforcement) as a result of declaring the Internet exceptional by its very nature…

It is not clear that all of the rights that people expect can be satisfied by self-governance alternatives present in the Internet today.  For example, a party which is libelled can be told that the Internet doesn't have an inherent way of getting them financial compensation, but they instead have the alternative remedy of presenting their side of the story and/or ravaging their online opponent.  While not exactly satisfactory, one can imagine a world which operates under such principles.

However, consider the case of someone who's been serious harmed by having their systems being compromised… Is the Internet alternative to explain that they 'had it coming' for not having less-than-perfect security?  Or is it to direct them to pursue their attacker online and perhaps attempt to break their bank account for compensation?  At some point, the Internet exceptionalism needs to interface to some form of real-world governance (territorial or otherwise) if we're to expect organizations to rely upon the Internet for business communications.

/John

Cross border enforcement and longarm expansion of existing laws are always contentious Suresh Ramasubramanian  –  Jan 26, 2012 6:27 PM PST

Yet they're necessary because crime is crossborder on the Internet.

If SOPA and PIPA were actually about (in intent, wording, regulation and enforcement) targeting child abusers, botmasters, whatever - and if they were consistent with existing laws and statutes in other countries, used MLATs and other existing relationships, you wouldn't have heard a peep against them (except maybe from the crowd that milton correctly describes as utopian)

SOPA / PIPA failed more because they were technically unfeasible, laid much greater burden on internet providers and tried to ride roughshod over existing frameworks, than because "the internet is global, borderless and not subject to any one country's laws".

Karl Marx on law and society George Michaelson  –  Jan 26, 2012 6:14 PM PST

I used this quote in a paper on Internet Content Policy and the law, back in 2001. I repeat it from time to time, because I think it is relevant to any discussion of the conflict between laws as they stand, and societies expectations of the law as a thing in itself. I have set in BOLD the section I think most apposite:

"… Marx, Schapper and Schneider, as signatories to the anti-tax proclamation of the Rhineland Democratic Committee, were accused of plotting to overthrow the regime. Marx again defended himself in a speech lasting almost an hour. He professed amazement at being prosecuted under laws that the Government itself had abrogated by its dissolution of the Assembly on 5 December. Furthermore, these laws were those passed by the pre-March Diet which was an outdated institution. Marx then gave the Jurors an object lesson on the materialist conception of history.

Society is not based on the law [he stated], that is a legal fiction, rather law must be based on society; it must be the expression of society's common interests and needs, as they arise from the various material methods of production, against the arbitrariness of the single individual. The Code Napoleon, which I have in my hand, did not produce modern bourgois society. Bourgois society, as it arose in the eighteenth century and developed in the nineteenth, merely finds its legal expression in the Code. As soon as it no longer corresponds to social relationships, it is worth no more than the paper it is written on. You cannot make old laws the foundation of a new social development any more than these old laws created the old social conditions [....] Any attempted assertion of the eternal validity of laws continually clashes with present needs, it prevents commerce and industry, and paves the way for social crises that break out with political revolutions.

From "Karl Marx, speech in his Defence, Marx-Engels-Work vi 232."

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