Communication, Laws and regulations - When, if at all, is it appropriate to regulate the internet?

As a result, the upgrades and eases brought to us by the Information Highways are affecting every aspect of our lives and of our societies. Education, consumption, entertainment… and of course deviances.

The existence of this network raises specific societal issues linked to morality, equality of access, freedom of expression and of information, territoriality and disappearance of borders and propriety of such a social Pandora box. The perfect illustration of that set of concern is lurking under the words of Kurt Anderson: “Starting with baby boomers, the big idea is getting whatever you want right this second, now. TV 24 hours a day, sex, drugs all of that… so the web delivers in spades - books now, CDs now, flowers and groceries now, stocks, data, letters, anything I want I can get now, all of the time by tapping a button”.

        The nature of the internet is responsible for its huge impact on our societies. Yet these societies are managed by politics throughout the use of norms. In many ways, internet, by its development free of rules and the changes it induced, allows people to bypass these norms. This is the main risk.

Internet can be described as anonymous, uncontrollable and interactive.

Anonymity is granted on the internet because it is virtually impossible to locate with precision its users. Of course, this anonymity is not granted by the omission of one’s name and address or the use of aliases. By using a computer at his home or office, a user can be still identified. But the truth is that all one needs to get connected is a computer, a modem, a connection (phone line, cable, etc…) and an access (i.e. a provider).

And technology as well as access to public computers can help the wannabe anonymous user to wipe out all possibilities to be identified. Moreover, the volume of online communications is a true obstacle to the identification process.

Interactivity can be seen as the reason of the existence of the internet. Indeed, the main purpose of this global network is the transit of data stored in the computers that are constituting the network.

Internet is, at last, uncontrollable. Of course, the access to the hardware and its propriety (cables, satellites, lines) can allow shut down of sites or entire domains, but by doing so, no real control is gained. On the one hand, creating, duplicating or renaming a site is very easy. On the other hand harshest measures (suppression of servers or domain parts, closing of gateways) are not really foreseeable because of being undiscriminating. Once again, the size of the net is an obstacle. Some countries tried to find control in engaging the liability of the provider. But it is very unrealistic to assume that providers will have the opportunity to check the content of each hosted site and the ability to provide an effective way of filtering offending material only. And, of course, it is easy to find a provider from a country with a different legislation: “governments could do little to control communication flows able to circumvent geography and thus political boundaries”

2. The risks resulting from the existence of internet.

“The audacious Prometheus, according to Greek mythology stole the fire from the Olympic Gods. When Zeus saw the glow of fire on earth, he became very angry and punished humanity by sending Pandora. She carried a mysterious box and when she could not control her curiosity, she opened it. All the disasters and plagues that were in the box spread around the world….the myth warns us that progress exacts a price: the anger of Zeus…. Technology inevitably brings great benefits and awesome risks”.

        As is as been said supra, Internet offers brand new opportunities to infringe the law (For example, according to CBS, internet crime is the fastest growing crime in the US).Those new opportunities should not be seen as being born of the emergence of internet, for mostly all online offences or crimes already exist and existed before the creation of the net. Except maybe for the concept of hacking, internet only offers a new and easier way to breach the law as well as possibilities to escape the usual punishment for those breaches. Of course, it would be impossible and useless to try to list the different kind of internet crimes. But a general pattern can be found.

        Internet ignores boundaries. From his room, office, etc…one can reach the other side of the world. This idea is very enjoyable, except when it comes to cyber crime. Indeed, “physical borders between states have always determined which set of normative rules apply to individual behaviour”. Of course, laws apply online in the same way they do offline, but the international nature of the internet takes the crimes outside national jurisdictions.

In fact, it is not only that a user from a country can infringe the laws of another country, but more the idea that the crime is committed on an imaginary soil: the Cyberspace.

The only acceptable (but still fictional) projection of geographical concepts on this imaginary territory is to assimilate it to the whole world but a world in which no borders would exist. Governments have tried to ignore that fact, trying to regulate the accessibility of certain materials from their countries. But with no success at all, except maybe in dictatorships (accessing forbidden material in China has been so far sanctioned by 2 to 4 years of imprisonment) for it is hardly possible to exert such a control without breaches of Human Rights (freedom of expression and of information). This border free environment is triggering a great demand for a set of international rules on the internet, indeed a much more realistic solution for the purpose of regulating cyberspace.

        A corollary of this absence of boundaries and of diversity of legislations is that it becomes impossible for an internet user to know if the material he dispatches on internet is not illegal somewhere. In fact, with the already quoted example of China, but also Saudi Arabia or Singapore, it actually is nearly impossible not to breach a set of laws when broadcasting material on internet. For example, who knows what impact consulting a syllabus of Human Rights law accessible on a Dutch university site can have on the life and freedom of a Chinese student? Not to talk about moral norms: it might be impossible to surf internet chat rooms without offending someone for such reasons as cultural differences.  

        Amongst the most common breaches of the law on internet, three different kinds must be more closely studied. On the one hand, there are the breaches of privacy. According to American statistics, online, every 79 seconds, a thief steals someone identity, open accounts in the victim’s name and goes on a buying spree.

Another example is to be found in so-called petitions distributed throughout the web, under false reasons, in order to collect people’s personal information. For example, at the edge of the war in Iraq, a “UN petition” circulated, forcing the UN to open a site denying that they were using internet for the purpose of petitioning. The same concern occurs with e-commerce and internet consumers. More than just being flooded by publicity, it is about the legitimate fear that companies may gather and sell personal data to others companies, turning these data into a commercial good. Of course, if the only material sold is somebody’s address no real harm is caused. But it can be medical data, credit card numbers, insurance numbers or information, etc…A good example of the foreseeable extremities such behaviour can trigger is to be found in Bruce Sterling’s fictions.

        On the other hand, the second types of cyber crimes are the breaches of copyrights, patents or trademarks. Indeed because internet purpose is the transfer of information on a wide scale, the data protected by the rules of intellectual property are not safe. Let’s consider a set of practical examples: if a person buys a book, nothing can really impeach that person to scan it and make it available for all internet users.

The problem is even more acute with video material because in this case, the buyer is not even facing the deterrent task of scanning several hundred pages. For example, the worldwide expected movie ‘Matrix reloaded’ is to be released the 21.05.2003 but is already available on the internet. But the problem is much more serious with music. Two creations are at the origin of a revolution in the domain of music piracy. The first one, a new standard of compression called MP3 divides by twenty the storing space necessary for music, allowing users to stock hours of music on their hard drives (on average, five megabytes are needed for a 3 minute song and hard drives now have an average capacity of twenty to forty gigabytes). The second one is a new generation of sites initiated by a site called Napster. The principle of these sites is to allow their members to put in common their hard drives: if a user is looking for a song, he launches an inquiry about the title of that song and will have access to all the hard drives on which the song is stored. Moreover, the song can be downloaded from several hard drives at the same time, consequently reducing the required downloading time. Associated with the propagation of CD recorders, Napster transformed a marginal crime (piracy) into an everyday habit amongst internet users (at its peak, Napster had over 80 million registered users). Napster faced an US legal action and was forced to quit with peer-to-peer file sharing (as it is called). But the damage was done: other sites are opening every day (the most frequented one is now Casa).  

        Finally, the last category of cyber crimes is linked with child abuses, most of the time, sexual abuses. In America, 95% of the schools are connected to internet. Over 45 million of children ages 10 to 17 are internet user. Among them:

• One in five has been sexually solicited.
• One in four has encountered unwanted pornography.
• Almost 60% have received an e-mail or an instant message from a stranger and half have communicated back.
• Over 75% of internet crimes involving sexual solicitations of children and exposure to unwanted pornography is not reported to police or parents.

Those statistics have to be associated with crimes that are not taking place on the internet but are triggered by a cyber encounter: the site teCrime.com reports the story of “a 13-year-old Connecticut girl [who] was found murdered after she agreed to meet a 21-year-old married man she had met on the internet” or the story of an undercover police officer pretending to be a teenager on internet whose arrest record of internet paedophiles is regrettably impressive.

        There is, of course a lot of other cyber crimes but these are the most common ones. On the internet, another category of criminals are reaching a quasi-mythological status: the hackers. High-tech pirates, the hackers have for commitment breaching every kind of computerized security protocols. From the algorithm protecting credit cards (and creation of ‘yes-cards’ always accepted and credited by the cash machines) to the confidential files of the CIA or the FBI (see the Kevin Mitnick case) hackers are turning the cyberspace into a security-free area in a nihilistic frenzy.

Despite the legend rapidly growing around their prowess, Hacking remains a marginal and dangerous activity which, most of the times, brings the hacker in the grasp of justice.

3. The potential course of action for regulating the internet: a clash of various conceptions.

The debate on regulating the internet triggers a wide range of reactions. From partisans of the auto-regulation opposed to any kind of state regulation, to the advocates of a state-controlled internet. The cyberspace itself became the battlefield of an ideological feud involving all these actors. Strong arguments are being waved by the adversaries of the regulation. They stress out that by the liberty internet enjoys, it became “the closest form of democracy ever known to mankind; the ideal platform for independent thought, freedom of expression and critical analysis of the issues of the day free from the fetters of national restrictions”. According to this group of people, “any regulation whatsoever, would destroy this climate”. The problem is effectively that believing internet can be auto-regulated is merely a utopia. Abuses will not disappear because of the good will of the users. This utopia will not become a reality even sustained by charters as Virginia Shea’s ten commandments:

• Remember the human.
• Adhere to the same standards online that you follow in real life.
• Know where you are in cyberspace.
• Respect other people’s time and bandwidth.
• Make yourself look good online.
• Share expert knowledge.
• Help keep flame wars under control.
• Respect other people privacy.
• Don’t abuse your power.
• Be forgiving of other people’s mistakes.

The opponents of such a theory are arguing that “any medium where human interaction is rife has to be subject to laws and regulations to prevent the abuse of the medium by those who seek to mislead and take advantage of other users”. To the argument of total democracy, they oppose the need of making the net a safer place in order to allow the rise of internet as a commercial medium. The uneasy task will be to try to “avoid stifling a medium still very much in its infancy”.

There are 5 different standards of norms applicable to the internet, corresponding to 5 different types of regulators:

• The actor himself, submitted to personal ethics, inflicting self-sanctions.
• Second party controllers (i.e. the person act upon), ruling according to contractual provisions, facing self-help mechanisms as sanctions, thanks to filter software, etc…
• Social forces can also be regulators, regulating with social norms, inflicting social sanctions included in a code of conduct.
• Hierarchally organised Non-governmental organisations can be in charge too, setting organisation rules prescribing organisation sanctions, by industry self regulation.
• At last, the ultimate regulators can be the states, relying on law as substantive rule and mechanism of regulation, whose non-respect can then be sanctioned by state enforcement and coercive sanctions.

At last, the problem of regulating the internet relies heavily on the different kind of filters that can be used to control the accesses to cyberspace or the content of internet. There are 6 different kinds of filters:

• Filters that use a pre-selected list of sites: a very regularly updated list of site allows access to these sites only.
• Keyword based filters: the engines search the sites for keywords and ban the access if a keyword is found.
• Rating based filters: A coded label is placed on each web site, which describes its content.
• Blocking outgoing information: these tools control the uploading of information.
• Positive content filters: search engines are configured to return list of sites but of unobjectionable content.
• Monitoring: programs are recording online activity and send a signal to an organism if objectionable sites are found: the Internet Service Provider is then asked to shut the site down and the authorities are alerted.

Conclusion:

        As a conclusion, it can be said that regulating internet is a really complex issue for the network is still in its infancy and because for the first time a completely new set of rules is to come.

Indeed, despite the pre-existence (under a different form) of the activities available online, the existing regulations of those activities are not fitting the very nature of internet.

        It is however possible to say that internet should not be left unregulated for it is a powerful and potentially harmful tool. The principal feature of the network, an incredible stream of freedom must still remain be preserved, for it has powered the exponential growth of the cyberspace, the constancy of social and technological innovations, and the birth of the first universal link between wired humanity. A balance is to be found between freedom and control to avoid this overwhelming freedom being its first victim or to see internet turned into a new frontier of totalitarism as it is in some countries.

   

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