Regulation of Cyber- A Space or a medium

REGULATION OF CYBER- A SPACE OR A MEDIUM?

Written by Lawrence Liang 

1. Introduction

The task of any critical enquiry is to rigorously examine every truism, no matter how common sensical it may seem.  There is currently a commonly held view that cyberspace and the internet in general needs to be strictly regulated. More often than not the examples cited in favour of the proposition would include stories of cyberstalking, the use of the internet for child pornography and child sexual abuse etc. While there are clearly dangers posed by the use of the internet which need to be seriously tackled, it is the argument of this paper there is also a need to understand the larger political and cultural implications of including cyberspace within the domain of laws empire.

Cyberspace may actually be one of the last surviving commons which has thus far escaped strict regulation. Every technological revolution has brought about with it a new spate of legal issues and legal problems which have to be addressed either through the modification of existing laws or the introduction of a new legal paradigm. The real issue for us to discuss however is whether the internet is merely another technology or medium or is it truly a “space”.[1]

In the Indian context there has been a recent buzz over the need to regulate cyberspace. The passing of the Information technology Act 2000 and the subsequent amendment to the Indian Evidence Act , the proposed Communications Convergence Act and the merger of the departments of IT and Convergence are some of the recent trends in this move towards regulating cyber space.

While the focus of this issue has been to deal with issues of legal loopholes which need to be amended, my concern in this paper will be to examine the philosophical basis for a claim to regulate cyberspace. This paper does not seek to examine specific loopholes in existing laws and the proposed legislations which deal with cyberspace, of which there are many. Instead an attempt will be made to critically examine the nature of the claim being made that cyberspace has to regulated and the particular mode of regulation that is envisaged. It is a further argument that law is a constitutive discourse i.e. it not merely describes a particular phenomena but through such description goes on to create the very phenomena itself.

One of the major premises that is made about cyberspace consist of the image of cyberspace as a lawless frontier where anarchy prevails.[2]   This mode of constructing cyberspace has been constructed as a result of three trends. These are

·         The challenge that cyberspace poses to traditional notions of jurisdiction and regulation. This has been particularly heightened after the September 11^th attacks with the US passing law and other countries demanding similar laws which regulate the kinds of communication that may be allowed over the internet.

·         The increasing transition of property in the global context from tangible assets to intangible assets like Intellectual property has converted cyberspace from being a mere infospace into an important commercial space. The Napster case saw the recording industry of the US battling the notion of using the internet as a free spacer through which commercial property can be shared; the commercial losses caused by viruses transmitted over the internet are valued at approximately $1.2 Billion annually.

·         The moral panic created over the use of the internet to subvert the “moral standards” of the community. The common arguments in this regard involve the abundant existence of all forms of pornography in cyberspace and the relative ease with which the same may be accessed.

The confluence of these three trends have led to the justification for the need of a discourse of regulation which would have three interconnected effects. It creates a regulatory regime for a space which is not merely technological in nature but also impedes directly on the cultural practises of various communities in cyberspace and the practises of these communities. It seeks to structure economic relations in cyberspace in a manner as to facilitate the greatest benefit for traditional owners of intellectual property and finally to also determine new terrains of configuring national territory and sovereignty itself.

The critical issues that need to be addressed then include:

Ø      What are the challenges that are being posed to sovereignty and law by the internet?

Ø      What is cyberspace and how is it conceptualised by the law

Ø      How does a particular manner of conceptualising cyberspace influence the mode of regulation chosen?

Ø      How do we critically engage with the emergence of these cyber regulations

Ø      Are there any alternatives to the form of regulation envisaged and are there any alternative narratives apart form the ones in mainstream discourse?

2. What are the challenges posed to sovereignty and law by cyberspace?[3]

The traditional  role of legal systems in modern society can be summarised as:

1. Maintenance of law and order for  national interest and national security
2. Regulation of economic activities and structuring of certain economic transactions
3. Maintenance of civic and moral virtues

The traditional understanding of the rule of law is based to a large extent on the notion of territoriality and jurisdiction. The practise of geo-spatial power as adopted by regulatory regimes of national legal systems can be seriously challenged by the emergence of a new frontier or new space which escapes the strict boundaries maintained by legal systems.

Ø      The issue of jurisdiction or the reach of the law has been based on territorial definitions, either within the nation state context or in the context of international boundaries. Cyberspace challenges the traditional notion of jurisdiction, for instance while homosexuality is deemed illegal by Sec. 377 of the Indian Penal Code, it is not illegal in most western countries. A person sitting in India could therefore easily access materials on the gay community from somewhere else in the world.

Ø      The issue of jurisdiction also creates the issue of an identifiable legal subject. This has in the modern nation state meant a citizen subject who can be disciplined through a wide range of methods. In cyberspace however it is difficult to ascertain the exact legal identity of a person as cyberspace is littered with traces of the anonymous subject. In light of the September 11^th attacks on the WTC there is an increasing need for the criminalizing of anonymity.

Ø      One of the important tasks of a category such as the legal subject is also to enable the law to create identities for people. For instance the inherent subjectivity of a person’s experiences are now necessarily mediated through the operations of law. These could range from individual experiences of disability to larger social formation such as caste. By discursively categorizing the experience of people in a particular manner, the law also fixes a particular identity for the individual which would determine the manner in which the person relates to a sense of community. In cyberspace there is a disregard for traditional legal and social categories enabling people to transcend their “real” identities ranging from gender to ethnicity etc.

Ø       In terms of the ability to regulate modes of speech and expression, the regulatory nation state has the capacity to use various ways through which speech can be censored including pre censorship, especially in the context of seditious speech and speech related to sexual practises. In cyberspace however it is almost impossible to impose pre-censorship thereby greatly reducing the ability of the state to exercise its disciplining power.

Ø      Cyberspace acts as a new terrain of legitimacy for a number of self contained national governments. With globalization and the speed through which information can be accessed online, human rights violations are no loner only within the purview of the state but implicates the larger global community. For instance countries are now being made accountable for  rights violations within their boundaries, the support for Burmese leader Aung San Syu Ki against the military junta in Burma has received tremendous support in the online community.

Ø      Cyberspace threatens to disrupt the traditional notions of property and ownership in a radical manner. This is especially true with respect to cultural property protected by IPR. A case in point being the Napster community which enabled file sharing of music by people across the world, greatly undermining the monopoly of recording companies thus far.

An important feature underlying all the above concerns of the law and state against the internet bring us to the issue of whether the problems posed by cyberspace to regulation are problems of technology i.e. a particular use of technology to enable certain modes of relationships or is it  a larger issue of the manner in which cyberspace allows for a reconfiguration of relations which were earlier only within the realms of the state. Is cyberspace therefore only a medium of technology or des it consist of real spaces in which people interact?

The common name used for communities that exist and thrive in cyberspace is the notion of the “virtual community” [4]. It is my contention that a careful examination of some of the cultural practises of people who interact online will reveal that these communities are formed through very real experiences mediated through technology. (See story of the LambdaMoo community later). People also engage in cyberspace with real world consequences, for instance the creation of new pathologies such as internet or email withdrawal symptoms, the conducting of cyber wars between nation states, national governments and self determination movements etc.

 It is of course arguable that the practises of the virtual communities may not actually be very different form some of the offline or real communities that we know. For instance what is a community of believers in a particular religious faith, if not a virtual community. When a group of people assemble together under the auspices of a church or temple or mosque, basing their collective identity on a matter of shared beliefs, are they not a virtual community bound by particular practises. In this article we shall examine in some detail the practises of one particular virtual community to examine the complex ways in which laws operate in cyberspace and make the argument that a mere call for regulation through the formal legal system constitutes a very limited understanding of cyberspace itself. [5]

3. The LambdaMoo Community

The story of the Lambda Moo community provides for a fascinating account of virtual communities. In the early days of the internet, one of the most popular spaces in the cyber world were MUDS (or multi user dimensions). A multi user dimension is essentially a computer program which users can log into and explore. Each user takes control of a computerized persona/avatar/incarnation/ character after which they can walk around, chat with other characters, explore dangerous monster-infested areas, solve puzzles, and even create their own rooms, descriptions and items. While initially most MUDS were of the “hack and slash” variety they have grown to include various forms of social interaction.   LambdaMOO  is one of the most popular of the "social" MUDs. It consists of a fantasy like mansion and grounds created through textual descriptions, encompassing both sound and graphics. For instance when you enter LambdaMOO you arrive at the Living Room where you are greeted with the following description:

The Living Room.

It is very bright, open, and airy here, with large plate-glass windows looking southward over the pool to the gardens beyond. On the north wall, there is a rough stonework fireplace. The east and west walls are almost completely covered with large, well-stocked bookcases. An exit in the northwest corner leads to the kitchen and, in a more northerly direction, to the entrance hall.

LambdaMOO allows interaction between players in real-time through textual commands like ""says." In LambdaMOO there is also a rough approximation of the laws of physics. For example, a player cannot hear or see the goings-on in another room or exit a room in the direction of a wall instead of a door. This creates a compelling impression of physical space. But in reality, LambdaMOO is just a descriptive data-base through which the players comb, text scrolling across their screens.

The characters in LambdaMOO know each other only through the character description that each one has written and the content of the conversation. Most characters are imaginative half worldly beings who have very little to do with their real identities. For instance you would find ""a human-sized, cyber-punk Tinkerbelle" with skin resembling "the dull side of a piece of aluminium foil." Or a "a petite reptile with tasteful pale purple scales. Further the program also allows every player to define his or her gender. The Possibilities include male, female, both, neuter, and indeterminate, among others. One of the most common pastimes in LambdaMoo then is gender guessing with the most skilled players using subtle gender bending plots such as such as a man who plays a woman pretending to be a man.

This self contained world of LambdaMOO was however seriously disrupted by the emergence of a Mr. Bungle, a "down-at-the-heels harlequin." He inserted a little extra code into LambdaMOO's server which enabled him to seize control of two other characters, Legba, a "Haitian trickster spirit," and Starsinger, a "tall, stout female." Mr. Bungle then went on to rape Legba and forced Starsinger to enact a ritual of self-mutilation. The outrage continued until the players managed to summon a "wizard" (system administrator) powerful enough to disarm the perpetrator. After the incident there was outrage amongst the Lambda MOO community. While everyone understood that in real life the incident amounted to no more than an exchange of words and a breach of civility, the emotional impact on the victims was real - the Seattle woman playing Legba confessed that later, as she discussed the incident online, her (real) faced streamed with post-traumatic tears. Moreover, in the virtual context, this was rape, plain and simple, and it was the community that had been injured. The act threatened the very fabric of the players' society.

For quite some time after the incident the community debated the proper course of action. While there was a general agreement that the rape had been reprehensible, while some argued that there was no rule against it. A number of the players were apprehensive about introducing rules and regulations into their “free and open society”. In any case the lack of consensus was moot because the players remained impotent. Only "wizards" had the authority to impose the virtual equivalent of the death penalty-- closure of the perpetrator's account. In this case the creator and archwizard Pavel Curtis of LambdaMOO's decided to "[pull] out of the discipline/manners/arbitration business [and transfer] the burden and freedom of that role to the society at large."

The formation of laws regulating the conduct of the virtual community was therefore passed on to players have to date approved forty-eight ballots. There have been laws created which address freedom of speech, harassment, slander, rape, privacy, tragedies of the commons, overpopulation, homophobia, and the governance mechanism itself. An early ballot instituted a virtual court as a dispute resolution mechanism, and it is used frequently. Some disputes arise over rights to property, the manipulable objects that exist in LambdaMOO separately from the players. The level of sophistication can be striking, as evidenced by one dispute over control of the "air rights" which are essential to operating LambdaMOO's many virtual aircraft.

These first attempts at self-governance illustrate that the nuanced and complex relationship between LambdaMOO and its law that is more subtle than ordinary descriptions of the law suggest. Law in LambdaMOO has emerged as an institution that emerges from the community that it governs. That is, while law in the form of ground rules defines the nature of LambdaMOO, the players in turn define the law. Not only do they draft, vote on, and implement the law, but the degree to which they abide by and enforce it determines what, if anything, the law means (i.e., how it affects the play). In this sense the law of LambdaMOO represents a political compromise among players who hope to create a game that all are willing to play. In other words, rules are tools that the players use to realize the kind of community with which they wish to identify. As an expression of the community's sensibilities, law defines rather than derives from these so-called first principles.

4. How does law conceptualise cyberspace and what does it envisage as the appropriate regulatory modes?

It is very clear from the account of LambdaMOO that there exists certain virtual communities whose online identity is as real and important as their offline interaction. While it may be readily dismissed as another extreme of American society, the fact  remains that the practises of this online community also reveal interesting aspects of interaction online. While it may still reflect only the principles of social interaction within the context of a “game”, it is interesting to note that these organic nature of the rules and laws somehow seem to also reveal the impersonal and authoritarian nature of the laws in our “real life”.

We can now turn to the manner in which the formal legal system describes cyberspace and what the politics of such a description entails. It is important at this stage to describe two theirs of the law which are commonly followed. The first is the fact that law operates not merely as a descriptive account but also a constitutive one. That is, it does not merely document or record a set of social relations but through such descriptions actually prescribes what these social relations ought to be and how deviance form the norm would be then be considered an illegal act. Secondly, there are instrumental theories of law which state that laws consist of independent norms which exist outside of the framework of the day to day interactions of people, and that the existence of laws are then instrumental of the ways in which people interact with each other.

It will be clear from the following account that the interaction of law with cyberspace has always predicated itself on a constitutive and instrumentalist mode as opposed to a more organic mode as witnessed in the experience of the LambdaMOO community. Cyberspace is seen popularly by the law as terrain or frontier which is “out there” and which serves as an extension of the practises of people in “real space” or in the online world. The implication of such a conception is that it then becomes impossible for the law to imagine or conceive of a mode of regulation which does no always already mimic regulatory systems of the offline world. Instance there is no questioning the assumption of the logic of the setting up of a cyber crimes police station because it is a given that policing is best mode of regulation for modern society. Secondly while examining the basis of the form of regulation, it is also important to realise that these modes of regulation impinge on substantive act acts such as speech and expression. An example being that while regulating or monitoring sites in India which provide safe spaces for gay men to meet in the online world, it is important to remember that the law is not merely regulating practises in cyber communities but also directly affect the ability of sexual minority groups to meet and interact online, thereby making very clear statements against a sexual norm which deviates from the acceptable standards of the law.

Perhaps the most important aspect of the policing of cyber space consists of the automatic creation of the “public sphere” which demands a certain form of regulation. For instance in Delhi there was recent arrest of a teenager who had posted naked photos of his classmates. In the ordinary course of things this would have been taken to be a private act which would have been dealt with by the school authorities but because it involved the use of cyberspace he was arrested and initially denied bail.  The reason for the involvement of the state in this case is clearly premised on the fact that internet is necessarily a public forum which denies  the possibility of any act being of a private nature. While the argument may be acceptable in the case of acts such as posting pornographic pictures without consent etc., it is important however to recognise that in a number of instances the distinctions may not be so clearly drawn out. Again to use the example of the sexual minorities community, when there exists a law which does not allow for sexual preference, cyberspace becomes one of the few available safe spaces for members of these communities to interact. What starts of an a private act of seeking companionship also becomes a communitarian act of meaning making through the formation of solidarity groups, rights movements etc.

There has been a consistent demand to recognise that cyberspace is not merely a medium, a technology or an enabling forum, it is also an actually social space  in which people interact and in which people might transcend the limitations of their offline legal identities. For instance in United States v. Thomas which involved a bulletin board service providing pornographic pictures, it was argued that the Court should acknowledge and create a new definition of community for cyber obscenity that is "based on the broad-ranging connections among people in cyberspace rather than the geographic locale of the federal judicial district of the criminal trial." Rejecting these arguments, the circuit court ruled that "the manner in which the images moved does not affect their ability to be viewed on a computer screen in Tennessee or their ability to be printed out in hard copy in that distant location." The Court determined that “the AABBS was set up so members located in other jurisdictions could access and order GIF files which would then be instantaneously transmitted in interstate commerce”.

There is a fundamental logical fallacy in this kind of an approach to cyberspace because surely if criminal laws are premised and created through a certain common minimum moral standards of the community, it cannot be created without an acknowledgement of which people constitute the community. Thee has however been a progress in the US from the position held in United States v. Thomas. In ACLU V. RENO, the court held that “although content on the Internet is just a few clicks of a mouse away from the user, the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. Families who wish to protect their children can install filters, a step already taken by some libraries. In sum, the spectrum scarcity, captive audience, and total community environment problems are absent in online communications.  Therefore, restriction of sexually offensive communications to protect the well-being of society is neither a legitimate, nor a compelling, state interest in cyberspace”. [6]

The ACLU Court further stated that “Communications over the Internet do not "invade" an individual's home or appear on one's computer screen unbidden.  Users seldom encounter content "by accident."  A document's title or a description of the document will usually appear before the document itself takes the step needed to view it, and in many cases the user will receive detailed information about a site's content before he or she need take the step to access the document.  Almost all sexually explicit images are preceded by warnings as to the content. The Internet may fairly be regarded as a never-ending worldwide conversation . . . .  As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion . . . .  Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects. The cyber community created by the Internet is as much a community as traditional geographic districts.  A connection-based definition of community rather than location-based one will ensure that differing communities have the right to establish their own standards in judging obscenity”.

The same assumptions made by law about cyberspace as a public medium out here also operate in their reactions to economic relations in cyberspace. For instance there are increasing copyright and trademark infringement cases filed against individual web sites especially in the “fan club” categories. By reducing cyberspace to being only a public medium you transforms what may have otherwise been a very individual act into a public activity. For instance we are aware that in the offline context, there are a number of people who maintain scrap books of their favourite artistes or people who collect lyrics of songs. We are also aware that theses individual fans also often trade pictures or songs with other fans or show their collections to other people. All this of course is seen to be in the realm of individual hobbies. However given the very nature of the internet these individual activities automatically get converted into a network of community of fair users and this collective use is then regarded as a threat to the commercial interests of various companies, artistes etc.

It is the contention of this paper that is the internet is seen more as a social space than a medium then it would necessarily have to expand our traditional notions of commercial property and usage whereby the space allows for easy cut and paste jobs, to produce newer notions of authorship and originality. In cyberspace, the idea of property is transformed whereby  the netizen is at the same time author, a collaborator, a publisher, a critic and a commentator. There is a serious challenge to the traditional notion of property where the end product is not seen as a compete end but as a more fluid form which will undergo change at the hands of a number of collaborators across cyberspace.

5. Of communities and laws

While the Internet is commonly portrayed as a lawless frontier, in many ways law is as prevalent in cyberspace as it is in real space. By examining the modes through which an actual virtual community operate in cyberspace it is the contention of this paper that the assumption of lawlessness in cyberspace emerges from an instrumentalist rather than an organic concept of law. There clearly exist certain quasi legal rules within a number of virtual communities which determine the who can speak and what can be said.

The customs and local rules that these communities use to allocate rights to speak and associate constitute the newsgroups' identities. These quasi-legal institutions construct separate communities by differentiating one from another; they also underpin individual identity by elevating electronic speech from mere utterance to an act that secures membership. Furthermore, law contributes to the meaning of what is said because it forms the context in which speech is communicated. Thus in cyberspace, law can be an important, if inconspicuous, element in defining the community, the speaker, and the meaning of what is said.

If a legal community can be defined as a community of people having a common purpose or project involving sustained interaction among members; boundaries, with some group control over membership and exit; and a degree of group governance over group norms and behaviour, then there exist clearly in virtual communities these rules of engagement. It can also be safely assumed that for an effective legal system, laws have to emerge organically as opposed to being dictates handed down in a hierarchical manner.

The instrumentalist conception of law depicts law as external rather than internal to a community. Instrumentalism conceives of a "fairly firm division between the legal and the social with law being an important influence on society, but standing outside of it." In this instrumentalist role, law is a force for changing behaviour on the Internet that may interfere with the ability to create a community. This is not to deny that in certain cases there is a need for a proactive use of law as a means to regulate certain modes of behaviour which can be considered as universally unacceptable, for instance child pornography or child sexual abuse. But that has to be taken as the exception and not the norm because if you do that it as a norm then it has the dangerous potential of impinging on the right of freedom of speech and expression in cyberspace. Finally by conceptualising cyberspace as an actual social space as opposed to a medium or technology there is an implicit recognition that standards of behaviour will emerge within the context of virtual communities which can be enforced contractually as opposed to using criminal laws to enforce acceptable behaviour.