This is irrational and insane…

http://www.theregister.co.uk/content/6/26612.html

Damn the Constitution: Europe must take back the Web
By Bill Thompson
Posted: 09/08/2002 at 14:01 GMT

Guest Opinion I’ve had enough of US hegemony. It’s time for change – and a closed European network.

Today’s Internet is a poor respecter of national boundaries, as many
repressive governments have found to their cost. Unfortunately this
freedom has been so extensively abused by the United States and its
politicians, lawyers and programmers that it has become a serious
threat to the continued survival of the network as a global
communications medium. If the price of being online is to swallow US
values, then many may think twice about using the Net at all, and if
the only game online follows US rules, then many may decide not to
play.

We have already seen US law, in the form of Digital Millennium
Copyright Act, used to persuade hosts in other countries to pull
material or limit its availability. US-promoted ‘anti-censor’
software is routinely provided to enable citizens of other countries
to break local laws; and US companies like Yahoo! disregard the
judgements of foreign courts at will.

Congressman Howard Berman’s ridiculous proposal to give copyright
holders immunity from prosecution if they hack into P2P networks is
the latest attempt by the US Congress to pass laws that will directly
affect every Internet user, because no US court would allow
prosecution of a company in another jurisdiction when immunity is
granted by US law.

Unless we can take back the Net from the libertarians, constitutional
lawyers and rapacious corporations currently recreating the worst
excesses of US political and commercial culture online, we will end
up with an Internet which serves the imperial ambitions of only one
country instead of the legitimate aspirations of the whole world.

While this would greatly please the US, it would not be in the
interests of the majority of Internet users, who want a network that
allows them to express their own values, respects their own laws and
supports their own cultures and interests.

US domination has been going on for so long that many see it as
either inevitable or desirable. ‘They may have their problems but at
least they believe in democracy, free speech and the market economy’,
the argument goes. Yet today’s United States is a country which
respects freedom so much that if I, a European citizen, set foot
there I can be interned without any notice or due process, tried by a
military tribunal and executed in secret.

It has a government which respects free speech yet tries to persuade
postal workers to spy on people as they delivered their mail. Its
Chief Executive illegally sold shares when in possession of
privileged information about an impending price crash. ICANN, the
body it established to manage DNS, had to be ordered by a court to
let one of its own directors examine the company accounts for fear he
may discover something untoward. And elected representatives -like
the aforementioned Howard Berman -are paid vast amounts by firms
lobbying for laws which serve their corporate interests.

These are clearly not the people who should be setting the rules for
the Net’s evolution. Unfortunately today’s Internet, with its
permissive architecture and lack of effective boundaries or user
authentication, makes it almost impossible to resist this
technological imperialism.

Who trusts you, baby?
Fortunately the technology itself – in the form of trusted computer
architectures, secure networks and digital rights management – can be
used to rescue the Net from US control.

These developments, reviled and criticised by those inside and
outside the continental United States who hold on to an outdated and
unrealistic view of what the Net was or could become, are the key to
its future growth and usefulness. Whatever the libertarians say, they
must be defended, promoted – and properly controlled.

I believe that the time has come to speak out in favour of a
regulated network; an Internet where each country can set its own
rules for how its citizens, companies, courts and government work
with and manage those parts of the network that fall within its
jurisdiction; an Internet that reflects the diversity of the world’s
legal, moral and cultural choices instead of simply propagating US
hegemony; an Internet that is subject to political control instead of
being an uncontrolled experiment in radical capitalism. It is time to
reclaim the net from the Americans.

This will not be easy. In order to do this we have to reject two
beliefs that underpin our current understanding of the Net, and these
beliefs, although wrong, are dear to many.

The first is the idea that the Internet is somehow outside or above
the real world and its national boundaries. If I phone someone in
Nigeria and suggest a money-laundering fraud then it is obvious to
all that I am breaking the law in two countries, not in ‘phonespace’.
Nobody has ever suggested that the content of the telephone network – all those voice calls -should be somehow privileged and treated as
outside the normal world.

Why, then, do we act as if our interactions with screen, mouse and
keyboard are different? If I send an email suggesting that I am in
possession of $50m and will hand it over in return for your bank
details, why can’t it just be that I also am breaking the law in two
countries, not in some mythical ‘cyberspace’ with its own legal
system?

Losing the idea of ‘cyberspace’ simplifies things greatly.

The other thing we need to lose is the ridiculous belief that when we
are online we are somehow in ‘another place’ outside the real world.
We need to reject the philosophical bullshit which argues that there
is an equivalence between being simultaneously a ‘citizen’ of Maine
and of the United States and our co-existence in the real world and
the online world *, and accept instead the mundane reality that
nobody has any real form of existence online – either now or in the
foreseeable future.

This makes our discussion a lot simpler because we no longer have to
grapple with the idea of having two forms of existence – the one that
involves breathing, pissing and fucking and the one that involves
typing. We don’t have to stretch our legal or constitutional thinking
to cope with the apparent contradiction of being in ‘two places’ with
different standards of behaviour at the same time.

We can also deal with the problems of jurisdiction for online
activity in the same way as we deal with it elsewhere: in the UK
we’re perfectly happy to prosecute someone for war crimes committed
fifty years ago in another country, so why are there problems if the
crime involved the Internet? Under English law a sex tourist can be
prosecuted here even if he has sex with a child in Thailand: surely
prosecuting someone for promoting racial hatred on a US-hosted
website can’t be that different?

This is not to claim that these issues are all simple, resolvable and
determinate, just to point out that we already have legal systems –
admittedly imperfect – in place that can deal with them mostly
adequately, most of the time. In general the few exceptions are not
allowed to be used as arguments for making bad law. We must not allow
the Net to be the biggest exception, creating the worst law of all.

Brave Old World

This is hard for many old-time Net users to accept, because we like
the idea that being online takes us into a new space, a new world.
But it is simply not the case: we are not creating a brave new online
world out of our electrons and pixels. It is all one world – the only
difference is that we currently lack the ability to map our online
activity onto our real-world lives with any degree of certainty. The
result is that cyberspace appears somehow to be divorced from the
physical world – but this is just an artifact of our current
technologies and not a fundamental principle.

Once we clear our minds of these erroneous beliefs we can see that
the US has no right to determine how the whole Internet is run. Each
country should decide for itself. All we need to do is to mark out
the network, using trusted computers and secure networks to locate
servers, hosts, networks and people within geographically-defined
areas – or nation states as they are usually known – and let the
countries get on with it. We can establish the rule of law, national
sovereignty and local values in those parts of the network that fall
within the jurisdiction of a particular country, and let normal
diplomatic, cultural and commercial channels deal with the
interaction between countries.

This would not stop the US treating its Constitution as the only true
source of wisdom or framing their discussions in terms that draw only
from the US political and economic tradition. But if they decide to
run their part of the Net according to the principles laid down two
hundred and fifty years ago by a bunch of renegade merchants and
rebellious slave owners they would not be able to force the rest of
us to follow suit.

If they want a First Amendment online, or to let some gun-toting nut
argue that writing viruses is the online equivalent of carrying a
concealed weapon and so counts as a constitutionally protected right
then they can go ahead – the rest of us can do things differently.
(‘Viruses don’t trash hard drives – people trash hard drives.’)

A cyberspace in which each machine is ‘within’ a jurisdiction and
where actions can be mapped onto physical space will be very
different from today’s Internet.

In the mapped network we will not have the absolute freedom of speech
which cyberlibertarians claim they want, but neither will we get
absolute oppression, absolute free market capitalism or even absolute
communism. We will instead get compromise, and regional or national
variation, just as in the real world.

Many will see this as a loss of freedom, but the freedom they value
so much is also the freedom to act irresponsibly, to undermine civil
authorities and to escape liability. It is the freedom to release
viruses, abuse personal data, send unlimited spam and undermine the
copyright bargain. It is not a freedom we need.

It is easy to see why this approach will be resisted by US activists,
of whatever political persuasion, who see the ‘one world, one
cyberspace’ approach as a convenient way to establish an online
constitutional hegemony. It will also be resisted by many of those
who see any attempt to create trusted software running on secure
processors as the network equivalent of the arrival of the black
helicopters from the UN World Government Army.

However their position is untenable, because the vast majority of
Internet users need and want a secure network where they can use
email, look at Websites, shop, watch movies and chat to friends, and
they are happy to accept that this is a regulated space just as most
areas of life are.

Even if we don’t act we will still get a regulated network, because
the commercial interests which dominate the US know that it is a
prerequisite for a digital economy. However the shape of that network
will be entirely determined by US interests, just like today. It is
therefore vital that a different approach to the development of the
Internet is proposed -and I believe that Europe is the place for it
to start.

Bring it back

Europe is the birthplace of the Web, with a wealthy, technically
literate population, a network infrastructure that rivals that of the
US and a rich cultural and political tradition which can counter US
constitutional imperialism.

An important factor in Europe’s favour is that we retain a belief
that governments are a good thing, that political control is both
necessary and desirable, and that laws serve the people. These
beliefs are now lacking in the United States, rendering it incapable
of acting to create any sort of civic space online or allowing its
government to intervene effectively to regulate the Net.

The recently-agreed .eu ccTLD could be a rallying point for a serious
attempt to extend the EU online, adopting new standards for trusted
computing, regulating their use within EU countries and establishing
a European dataspace which would grow over time to become a major
node in the emerging trusted network that will replace today’s
Internet.

It will take political will and technological skill to do this, and
it will not be achievable overnight. But if we are to escape a world
where corporations build systems which are only capable of supporting
US-style online government, or where trusted software is a trojan
horse carrying the US constitution into our online life when we
neither want nor need it, then we need to act now.

A trusted network will not stop the Americans – or anyone else –
opting out and remaining with their existing unregulated Internet.
Just like the survivalists heading out to Oregon with their assault
weapons and dried food, those who don’t want to be part of the great
online civilisation could establish their own enclaves, where they
would be free to run the code of their choice.

But inside Europe our values, our principles and our legal system can
determine how our part of the Net is run. Personal data would be
protected by law, and those who abused the information provided to
them by individuals would be prosecuted. Data flows into and out of
Europe would be properly regulated and controlled to ensure that
neither spam nor viruses came in, and that no personal data went out
without explicit consent.

In Europe our copyright laws allow lending of material, and so media
players licensed for use within the dataspace would not restrict
personal copying or lending, although they would respect other
rights.

In Europe community standards for freedom of speech differ
substantially from those of the United States, where any sensible
discussion is crippled by the constitution and the continued attempts
to decide how many Founding Fathers can stand on the head of a pin.

Over here, human rights legislation, interpreted by judges who are
able to use their intelligence instead of just relying on textual
analysis of the Bill of Rights, gives us a much better chance of
tying online action to the real world and integrating cyberspace with
real space in way that benefits both.

In the end, William Gibson was wrong: cyberspace is not another
place, it’s just part of this space. There is no ‘there, there’ : in
fact, it isn’t really there at all. The illusion is, in the end, only
an illusion, however consensual it may be. Not only does ‘meatspace
rule’, but ‘meatspace rules rule’ – the laws and regulations that
govern the Net, whether they are legal, social, architectural or code-
based, will all come from the real world, where judges, lawyers,
programmers, politicians and – in some way -citizens get to decide
how our online activities and our real world lives mesh and are
linked.

The United States is incapable, for the reasons I’ve described, of
understanding this or of escaping its constitutionally-determined
destiny to attempt to establish hegemony over cyberspace.

It cannot be allowed to succeed, and so those of us within Europe
need to begin to work now to extend our culture onto the Net in all
its complex glory. We need to build our borders online and offer our
citizens protection within those borders, and escape from America.

• Much as I like Lessig’s work, he just goes too far here. I blame law school. Being a Cambridge philosopher manqué I tend to have a more brutal constructivist approach to this sort of thing.

  © Bill Thompson.