Volume 1, Issue 2, June 2004 From Laws for Cyberspace to Cyber Laws (literally) Integration of Legal Norms into Internet Protocols Law for Closed Digital Management Communities
This paper is an introductory summary of a large scale project, which I first outlined in more detail during the assessment for my Masters degree and is currently under development. It describes what I call the "Cyber Law Protocol" an automatic system capable of enforcing legal rules into networking operations. DOI: 10.2966/scrip.010204.259 (c) Nicholas J Gervassis 2004. This work is licensed through SCRIPT ed Open Licence (SOL) LL.B. Demokritos University of Thrace, LL.M. in Innovation, Technology and the Law University of Edinburgh, Ph.D. researcher University of Edinburgh. (2004) 1:2 SCRIPT ed 260 1. As an introduction. The following discussion introduces the dialectical transition from the "code is law" concept to an active "law is code" software application. It advocates the redevelopment of network protocols into reflections of contemporary legal systems as a practical method for creating a new form of self enforcing law online. The electronic environment's inherent openness for radically altering its apparent natural dimensions through bespoke modifications in the programming code's structure is its main advantage over our physical reality. The world as we know it is governed by both unchanging laws of physics like gravity (natural law) and humanimposed norms and rules (positive law) In an online world, this dichotomy between natural and deontic law becomes precarious. In this respect, the added value of electronic artificial landscapes is the specific freedom to inject behavioural modules into their digitised physics (the computer programming language) with an unlimited potential for integrating human positive law with computer's "natural law" Starting from this general assumption, which echoes Lessig's theoretical approach, I will attempt to build a simplified online community, as an example of the technological potential for bypassing (or even obviating) legal ambiguities. Moreover, I will explore the prospect of defining software operations for network communities (protocol) based on established models of diverse legal systems. For the sake of this brief paper, the case study will focus on developing an application that automatically manages issues of possession, ownership and distribution of files between the members of an imaginary closed online community. In short, the general idea is to transform the patterns of networking protocols (like the TCP/IP set) which arrange communications and the transfer of data between computer systems, to execute automatically Private Law behavioural modules without further human intervention. Normative law, what ought to be done, is translated into quasi physical restrictions of what can be done. 2. Developing CyberLaw The main feature of an application that would ideally realise the above principles and successfully implement them online would be the direct incorporation of law in the network's software protocol mechanisms. An example could be the TCP/IP set of protocols for Internet communications, which are structured on mathematical logic and patterns chosen for their technical adequacy. However, the latter are not immutable, and new, different models of communication protocols have been proposed and are currently under development. 1 Computer games can illustrate this point: whether or not a character in this fictional context is capable of defying a hypothesised natural law of gravity and of flying over his enemies is expressed in the programming code as a normative constraint: he is allowed to perform certain actions. 2 C L Hedrick "Introduction to the Internet Protocols" (1987) <www.eeng.brad.ac.uk/help/.xferfile/.inetproto.html> 3 The European IPv6 Task Force envisions development and implementation of a new Internet protocol, available online at <http:/www.ipv6 taskforce.org/europe.php> (2004) 1:2 SCRIPT ed 261 Two different elements will contribute to achieving the aspired goals. The first is the careful selection of legal rules that will regulate appropriately online environments. The second is the effective, accurate transfer of legal methodology into computer language. Both of these procedural steps are discussed below in a process that I have arbitrarily called "Codification" 2.1 Restructuring the virtual space Before going through these successive steps, it is crucial to define, in advance, the regulated area's dimensions, as successful application of law is indissolubly bound up with both the natural and social parameters of a given and potentially regulated space. In the fictional example discussed below, the community is, therefore, assumed to operate on a shared online platform, open in membership, though closed in access (meaning, active via typing allocated passwords) and in general performing similarly to a typical Web browser. This then allows e mail communications and stereotypical data exchange, graphical on screen representation of websites and an additional set of assisting applications and accessory tools. Additionally, it is important to identify entities that represent subjects and objects within this electronic world. The online social structure, as a real world metaphor, includes active participants and static objects in analogously operating digitised projections. Both users and their autonomous software, which may execute a variety of prearranged tasks on the formers' behalf, are defined as "actors" According to typical online functionalism, documents, pictures, sounds, programmes and contiguous exchangeable information are classified as "movable objects" while IP addresses, including single web sites and hosted secondary platforms, constitute a class of "immovable objects"