Regulating Cyberspace

In 1996, John Perry Barlow released a famous provocation about the limits of state power in regulating the internet. The Declaration, which we encourage you to read or watch in full, begins:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.... I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.

Barlow's Declaration has played an pivotal role in shaping how we think about online regulation. In this extract, he makes two main claims about online regulation, which we will examine in more detail below. The first is that the internet is inherently unregulable by territorial governments. The second is that state regulation of the internet is illegitimate, or governments should defer to the self-rule of cyberspace.

Overview by Nic Suzor:Governing the Internet

"You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear."

Barlow's first claim that territorial states do not have the power to regulate the internet is largely descriptive. This claim is based on a number of factors, including the decentralised nature of the internet, which is a network of networks that spans the globe without any real concern for jurisdictional boundaries. The internet enables billions of people to communicate largely anonymously across the globe, and the sheer quantity of content that is transmitted over the network each day is almost incomprehensibly large. All of these factors mean that, for the most part, any explicit interventions by governments can be trivially circumvented. If a website is shut down in one jurisdiction, it can be back up the next day somewhere else in the world. If a document is removed from one site, it will often quickly be reposted on a dozen more (see, for example, the 'streisand effect').

However, it turns out that regulating the internet isn't quite impossible, just often very difficult. Fundamentally, the internet is not a separate place because the people who use it are real people, in real locations, subject to the very real power of their jurisdictions. The pipes that people use to communicate are cables and wireless links which also have physical presence. Where a Government can target the speakers, recipients or intermediaries involved in a communication, it can have a real effect on what information is transmitted via the internet. Figure 1 below, for example, illustrates the network traffic in Egypt over the period of the January 2011 revolution. You can clearly see the point at which the Egyptian Government had shut down the five major Egyptian internet service providers. The Egyptian Government's intervention epitomises the idea that those who controls the pipes, controls the universe.

The challenge of regulating the internet is finding an effective way to either identify and regulate the potentially anonymous creators of information, the billions of potential recipients, or finding a way to regulate the networks along the chain of communication.

Figure 1: Who Controls the Pipes, Controls the Universe - Traffic to and from Egypt on 27-28 January 2011, from Arbor Networks

Graph of traffic to and from Egypt on January 27-28 2011, from Arbor Networks - Who Controls the Pipes, Controls the Universe

(Image (c) Arbor Networks via Wired)

Overview of Newzbin by Nic Suzor

While the internet is not unregulable, there are unique challenges facing regulators. The case of Newzbin, which was a popular Usenet indexing site, is one example from the fight against copyright infringement. Dubbed 'the Google of usenet' by the Motion Picture Association of America (MPAA), copyright owner groups sought to shut down the service that allowed others to easily find copyright films and other works. In a 2010 Decision, the High Court in the United Kingdom (UK) found Newzbin liable for copyright infringement, and the company was wound up and their website shut down.1)

Two weeks later, Newzbin2 rose from the ashes. Someone had copied the entire codebase of the old site and brought it back online on a server in the Seychelles, an archipelago of islands outside of UK jurisdiction. The MPAA went back to court, this time seeking an injunction that would require UK-based ISPs to block access to the website. The Court granted this order, marking an expansion of laws that were originally designed to block websites that hosted child sexual abuse material: Twentieth Century Fox Film Corporation v British Telecommunications PLC [2011] EWHC 1981 (Ch).

The system for blocking websites is not wholly effective. It turned out to be easy to bypass if users encrypted their connections or used a virtual private network to avoid the block. Shortly after the injunction, Newzbin2 released a user-friendly application to 'utterly defeat' the filter, explaining that its app could “break any updated web censorship methods or anti-freedom countermeasures”. Ultimately, however, Newzbin2 closed down in 2012. It had lost the trust of its users, who were not sufficiently willing to pay to support the new service. Importantly, copyright owners had also started to target the payment intermediaries that channeled funds to the organisation - intermediaries like Mastercard, Visa, Paypal, and smaller payment processors that use these networks.

The Newzbin case study illustrates how regulating online content and behaviour can be an extremely difficult task. By cutting off the flow of money, the rightsholder groups were eventually successful in shutting down Newzbin. However, this took a lot of time and effort, and there is a good chance that many users of the service simply moved to newer, better hidden infringement networks. Overall, the copyright industry has had some succes in tackling large copyright infringers, but this is an ongoing arms race, as infringers continue to find ways around the regulations.

Overview by Nic SuzorThe Legitimacy of Online Regulation

The second claim that Barlow makes in his Declaration is that state governments should defer to cyberspace self-rule, or what we call 'private ordering'. Barlow explains that:

"We believe that from ethics, enlightened self-interest, and the commonweal, our governance will emerge."

Barlow's argument is that the rules and social norms created by online communities to govern themselves will be better than anything imposed by territorial states. This was expressed by Johnson and Post in a famous 1995 article as a general principle that there is “no geographically localized set of constituents with a strong and more legitimate claim to regulate [online activities]” than the members of the communities themselves.2) In addition arguing that online communities should be able to govern for themselves, Barlow and Johnson and Post also contend that if territorial governments try to impose their own laws on a borderless internet, users will never be able to work out what set of rules they are subject to. Post argues, in a separate article,3), that:

If online communities are not left to regulate themselves, “we'll be stuck with the chaotic nonsense of Jurisdictional Whack-a-Mole".

As we will see in the Jurisdiction chapter, the legitimacy of any one nation claiming jurisdiction over transnational communications is still a vexed issue. As the Australian High Court noted in the Dow Jones v Gutnick4) case, nation states purport to have a responsibility to protect their citizens' interests online, and certainly a desire to regulate online content and behaviour.

David Johnson and David Post, ‘Law and Borders–The Rise of Law in Cyberspace’ (1995) 48 Stanford Law Review 1367, 1375
Post, 'Governing Cyberspace: Law' (2008)
Dow Jones and Company Inc v Gutnick [2002] HCA 56
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