Comments on how the Internet can arrange its own Regulation
1. Matthew J McCloskey’s Introduction to the Bibliography of Internet Self Regulation. Reproduced from http://www.ilpf.org/selfreg/bib4_18.htm with permission.
2. Party Autonomy
3. The Law of the Internet
5. Stopping Behaviour
6. The Power of the State
7. How it is to be done
8. The Key Elements
9. How it will work
11. The Philosophy of Law Making
12. The Author
Files referred to.
1. Introduction to the Bibliography of Internet Self-Regulation
From the "Introduction to Bibliography of
© 1998 Matthew J. McCloskey. Reproduced from http://www.ilpf.org/selfreg/bib4_18.htm with permission.
This bibliography of Internet self regulation was born of many discussions, arguments, and debates about regulating the Internet. In these discussions, it was clear that people were using key terms such as "Internet," "regulation," and most of all "self-regulation," in a variety of different ways, many of them confusing and inconsistent. The recurrent mantra was that, "the Internet should not be regulated by the government, but should be self-regulated instead." Everyone was talking about self-regulation as the obviously preferable alternative to government regulation, but as far as was evident from these discussions, "self-regulation" equaled lack of government regulation. But no affirmative definition or description of self-regulation seemed forthcoming. What is self-regulation of the Internet? What does this look like? Who is the "self" that is regulating itself? What are the mechanisms by which the self-regulates itself? Aren't both national and international governments already regulating the Internet? Are we talking about virtual communities? Filtering software? Does self-regulation really mean no regulation? And just what does it mean to "regulate" something? Does it mean to make laws? Enforce them? Punish people? Who is going to do it? And what part of the Internet are we regulating? The World Wide Web? E-mail? Ftp? The architecture of the Internet itself? Or just what people do when they are logged on?
[This document and the files linked to it are an attempt to provide an example of what might be brought about through using the mechanisms of the Internet itself to resolve Matthew J McCloskey’s dichotomies.]
2. Party Autonomy
The Party or parties are the members of the Internet Community. Membership is voluntary and there are no restrictions on who may join. No one has to join the Internet Community. Those that do not join the Internet Community do not obtain the benefits and freedoms described below and either suffer or obtain the exclusions.
Autonomy is a freedom that the Internet Community could have to make its own laws and to set up its own arrangements for dealing with those that did not conform to those laws.
3. The Law of the Internet
It is not necessary for the Law of the Internet to be written down. The Law of the Internet could be created by the Internet Community establishing its views on websites and newsgroups. There need be no voting process beyond an acceptance of what was best for the Internet Community from amongst the views expressed.
It follows from the previous paragraph that the Law of the Internet is diffuse and, outside its core values, uncertain. It is to be expected that the core values will expand over time but this is a natural process as in any community and just happens as laws become to be accepted.
There is nothing strange or new in a community developing its own laws as it goes along. History shows that many communities were created just so that they could escape from what they considered were unjust laws. Party Autonomy means that the Internet Community can do the same.
If the main reason for the Internet Community having its own autonomous Law of the Internet is to prevent others from attempting to impose laws then the Law of the Internet has to be enforceable. Put another way, the Internet Community has to have a means of stopping behaviour that is beyond the pale.
5. Stopping behaviour
There are several stages to "stopping behaviour". Firstly impartially determining that the behaviour is not acceptable under the Laws of the Internet. Such a determination, when published on the Internet, impliedly defines the Law of the Internet. It is the accumulation of the determinations and the Internet discussion that follows which allows the Law of the Internet to develop and change. Experience rules.
The next stage is determining what has to be done or what it is that no longer may be done (or both) and by whom in order to put right the not acceptable behaviour. This stage is concerned with steps that the Internet Community can itself take within the community.
The next stage is to decide what adverse actions are to be taken against those who have been behaving in an unacceptable manner. There is really no limit on what the adverse actions might be. For the purpose of illustration only we give a requirement that a sum of money be paid to charity.
6. The Power of the State
In extremis it is necessary to invoke the power of the state to ensure that the will of the community prevails. The power of the state is exercised through its courts. Those that find the courts being involved at all in Internet Governance are reminded that they are probably the first to rush to a court if they believe any of their freedoms are being imperiled. The courts are both a shield and a sword. In these comments the courts only appear as a shield. There is no question under the Law of the Internet that there could be any appeal or review process by a court. A proper decision taken according to an unwritten Law of the Internet and recorded as described in the "Law of the Internet Arbitration Rules" would be enforced by the courts of almost all countries in the world according to International Treaties. The courts enforcing the decision under the treaties are not permitted to consider any appeal against the decision.
7. How it is to be done
Those that are attracted by what they have read so far should read on for an explanation of how Party Autonomy for the Internet Community can be achieved. This also applies to those that do not believe it can be done.
Those that do not wish the Internet Community to have Party Autonomy should examine their motives. Probably unfairly, we assume that the objectors are lawyers who can see lucrative and long running court disputes in several countries at the same time slipping from their grasp. We know that very few lawyers are like that but we justify our attitude with an article "Justice is blind" from the London "Financial Times" of 17 July 1998 that is at http://www.ft.com Search the Archive using the Keyword "Justice" at the Headline and selecting the from and to dates as 07/17/1998. A fee is payable for downloading.
We reject the court process for Internet regulation as no state court can enforce action beyond its own state’s boundaries. The Internet knows no boundaries and as a state court system may so easily be evaded by moving off-shore we see no point in seeking a court-based system for Internet regulation.
8. The Key Elements
Party Autonomy exploits two laws that have come into existence for reasons quite unconnected with the Internet. These are the Arbitration Act 1996 of England and an international treaty that is shortly called The New York Convention. The text of these two laws may be accessed through http://www.endispute.co.uk/ and at http://www.wipo.org/eng/arbit/ny_conv/ny_conv.htm respectively. The Arbitration Act 1996 is very readable and no weaknesses have come to light so far in its short life but the New York Convention is showing its age and must be used with care to avoid legal difficulties. See the reference materials for a comment on current experience with the New York Convention.
The Arbitration Act 1996 was the result of six years of discussion that started because the English law for international arbitration was out of date. Central to the new law is Party Autonomy and without it these comments could not be written. Put shortly, Party Autonomy means that those in dispute or potentially in dispute have complete freedom in deciding the procedures and law to be followed to resolve any disputes or differences that arise. Let us say straight away that the English Arbitration Act 1996 may be used anywhere in the world and nothing by way of lawyers, language, traditions or the subject matter to be considered need have any connection with England at all.
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958 (to give the New York Convention its full name) has been adopted by over 150 states. These include The People’s Republic of China, Japan, The United States of America and all the member states of the European Union. The New York Convention as enacted by national parliaments provides a court run administrative procedure for enforcing arbitral awards.
No serious defects have been found in the English Arbitration Act 1996 and the New York Convention has stood the test of time. These comments are written on the assumption that the New York Convention will stand the test of the Internet.
9. How it will work
These comments are not written by or for lawyers, who will wish to do their own research. However, so as not to be misunderstood, we give section references to the Arbitration Act 1996 in brackets. The Act is clearly written and readers seeking further information should go directly to the text of the Act in the first instance. A much admired book on the Act is "The Arbitration Act 1996 – A commentary." Bruce Harris, Rowan Planterose & Jonathan Tecks: Blackwell Science 1996 ISBN 0-632-04131-5 which we have used.
All those in the Internet Community who wish to enjoy Party Autonomy and an unwritten "Law of the Internet" would need to reach an ’arbitration agreement’ (S6). The agreement must be in writing but does not need to be signed.
Community arbitration agreements are in practice usually created by making the agreement the rules of an association and all those who are to be covered assent to membership of the association. The ideal would be for all those providing internet services at any level and all those using internet services at any level being members of the association. It could be that Internet services would not be provided to those who were not members of the association. ; A Draft Constitution of The Internet Arbitration Association is offered as a possible set of rules for such an association. .
If all those in the Internet Community had assented to being members of the association then the arbitration procedures could be used by any member or members against any other member or members of the association even if they be on the other side of the world. It is assumed that such arbitrations would be conducted over the internet by email initially but using video when available.
Thoughtfully, but with unclear legal effect, there is provision [S89, S90 and S91] in the Arbitration Act 1996 to protect consumers (ie private persons in that capacity) from being forced into an arbitration when they would rather use a small claims procedure in court. This provision is based on European Law and requires action on the part of a consumer to avoid the arbitration. While it may be possible to show that these provisions are to the detriment of the autonomy of Law of the Internet, consumer protection is probably an overriding interest.
Members of The Internet Arbitration Association would be required to resolve internet disputes or differences according to The Law of the Internet Arbitration Rules. The Rules have been written in Plain English on "Keep it simple stupid" principles. Please do not suggest complications.
So that readers may see the full effect of the Law of the Internet Arbitration Rules under the English Arbitration Act 1996 without constant cross-referencing, a document Full effect of the Law of the Internet Arbitration Rules expanded by the English Arbitration Act 1996 is provided.
Attention is drawn to a few particular points from the Arbitration Act 1996.
S34(2)(9) The arbitrator(s) shall take the initiative in ascertaining the facts.
S46 The law chosen by the parties (The Law of the Internet) is applicable to the substance of the dispute.
S33(1)(b) The arbitrator(s) shall adopt procedures suitable to the circumstances of a particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of matters to be determined.
S35 The arbitrator(s) has power to order consolidation of proceedings or concurrent hearings.
S65(1) The arbitrator(s) may direct that the recoverable costs of the arbitration, or of any part of the arbitral proceedings, shall be limited to a specified amount.
These four points are only a few of the many arbitration favourable rules possible under the Arbitration Act 1996. A few rules, S33(1)(b) above is an example, are mandatory. While the provisions in the Arbitration Act 1996 of England are not totally unique it is noticeable that some other countries have brought in new arbitration laws since 1996 in a scramble to catch up. The very biggest (hundreds of millions of US dollars) construction arbitrations tend to be held in the countries where the arbitration laws permit party autonomy to the greatest extent. This is expensive and thus prized arbitral work that no one wants to have to rerun with a fight (win or lose) in the courts. The Internet Community can take advantage of the happenstance of the English Arbitration Act 1996 to resolve the dichotomies set out in Matthew J McCloskey’s article.
These comments hardly touch the New York Convention on account of the author’s lack of knowledge. The New York Convention appears to work. The courts will enforce foreign arbitral awards against their own nationals. The local courts have no power to retry the matter or consider any appeal. Any defect in the paper work or procedures will be exploited however, but that is to be expected and should be avoidable or rectifiable. See the relevant reference material
It is the international spread of the New York Convention that makes the enforcement of a Law of the Internet possible. Perhaps one day long in the future there will be an International Convention on the Law of the Internet but that can only happen after the Internet Community has worked out for itself what that law should be. The Law of the Internet will develop faster under these loose proposals than any group of law professors could keep up with developing such a law. International Conventions take even longer.
11. The Philosophy of Law Making
It may be difficult for those brought up in a democratic society to envisage law being anything other than the statutes passed by elected parliaments. The international law of trading has a longer history than parliaments. By the 10th Century international merchants in the Mediterranean Sea had established the norms by which they would deal with one another. Disputes needed to be settled by one of their number acting as arbitrator before their ships sailed on the next tide. Faith and trust were essential elements in good business.
Ashort history of the Law of the Sea is amplified in Chapter Four of "Lex Mercatoria and Arbitration: A Discussion of the New Law Merchant" (Revised edition) Fascinating reading.
The Law Merchant (as the lawyers call it) or commercial law was based on the customs and usages of the traders. Gradually these laws have been refined and parliaments have enacted national laws based on the old customary laws. The Uniform Commercial Code of the United States and similar laws elsewhere may all be traced back to a Law Merchant established in the first half of the second millennium.
Lawyers are inclined to say that there is no special law for computers (and by implication the Internet) as regular and ordinary contract law can readily be extended to new activities. Such statements fail when applied internationally. Laws only apply within separate nation states. There needs to be a development and enforcement mechanism for the participation of the Internet community in the creation of an international Law of the Internet. This is of course an opinionated viewpoint and others may prefer a better or more authoritarian approach. The book "The Laws of the Internet" by Clive Gringrass, Butterworths 1997. ISBN 0 406 00249 5 sets out how existing English law would apply to the Internet. Similar books could and may have been written and published regarding how the laws of other national jurisdictions apply to the Internet.
Further study is possible in the first three chapters of "The Law Merchant" by Leon E. Trakman, Rothman 1983 ISBN 0 8377 1207 6 and in Part 1 of "The Enterprise of Law" by Bruce L. Benson, Pacific Research Institute for Public Policy 1990 ISBN 0 936488 29 8. We were particularly impressed by the logic in the second book showing that law based on custom and practice (customary law) develops more quickly and flexibly than authoritarian law. A more recent book on the development of mercantile law discusses different routes for it's development.
12. The Web Page Author
The author practices as an arbitrator and maintains his own website at www.endispute.co.uk. He is not a lawyer. In these comments he has tried not to advocate anything, wishing to adopt an impartial position. However, he would not have gone to the bother of producing all this material if he was not of the opinion that a Law of the Internet would be useful to the Internet Community.
The author has attended the WIPO Training Program for On-line Domain Name Dispute Resolution Procedures in Geneva. The subject matter of these comments is not intended to cover Domain Name Disputes, which are seen to be external to the Internet. A Domain Name Dispute may involve a trade mark owner who does not even have an email connection.
Quite probably there have been few international and not many national Internet disputes so readers may well say that there is no need for a Law of the Internet. We would respond that nature abhors a vacuum and to express the opinion that the Internet Community would not take kindly to any laws from a national legislature.
Earlier comments by this author on the same topic will be found in the Submitted DNS Comments on the NTIA Green Paper at about the middle of http://www.ntia.doc.gov/ntiahome/domainname/130dftmail/3_22_98.htm .