Thursday, July 06, 2006

Developing Thoughts on Internet Jurisprudence...

I'm knee-deep in legal research on Internet Jurisprudence, and thought to share a few points which I hope to eventually address.

Jurisprudence refers to the philosophy behind laws, not the laws themselves. For instance, it's one thing to say that in the United States people can legally acquire guns and firearms. However, it's an altogether different statement to assert the jurisprudence behind such a law. The underlying philosophy behind the Second Amendment guarantee of the "right to bear arms" includes strains of Enlightenment thought on the protection of personal freedoms, anti-government sentiment, notions of popular sovereignty and authority, and others.

So my big question regarding jurisprudence is: Does a single indentifiable underlying philosophy exist behind Internet laws which have been either enacted or ruled upon by the courts? If so, can we ascertain what that philosophy is?

After scouring over research for weeks, my position is that yes, an identifiable philosophy has emerged governing legal decision-making on Internet issues. Whether it has been Congress or the Courts, the repeated pattern has been an emphasis on limiting the liability of ISPs, empowering the legal rights of formal governmental actors to bring litigation (whether criminal or civil) against individuals, and to grant these governmental actors expansive powers of policing, surveillance, and control.

What is distressing is that the courts seem to have thusfar failed to transpose Constitutional protections for individuals into Internet jurisprudence. They have not yet come to view the Internet as falling under a common property model (think, the regulation of public outdoor parks), and have taken "Internet exceptionalism" to mean that cyberspace is not the same as real-space, therefore many Constitutional protections do not apply in the same ways, if at all.

The Internet is certainly a public resource. We all have unqualified access to it, just as access to using a public outdoor park is indiscriminate as well. The underlying philosophy of most Internet laws and court rulings have, however, come to view the Internet as more in line with activites which take place within the private sector, and are thus regulated as such. Until this becomes recognized, the emerging Internet jurisprudence will legally justify governments around the world to be far more assertive in their Internet regulations and in implementing more of Lessig's "architectures of control", and at the expense of individual freedoms.
  

3 Comments:

At 10:46 AM, Anonymous raytime horne said...

Hi this is ray horne requesting for grade and to say good class thank you for every thing. www.rhorne00@ccny.cuny.edu

 
At 11:15 AM, Blogger DSherman said...

thanks for the grade...however Paula and a few other classmates that will go unmentioned (Wadsworth and Fitz) are none too pleased that the grades are not posted online yet...hope alls well
daniel.

 
At 8:20 PM, Blogger Lesley McDade said...

There is not an "Internet Act" here in the UK. However citizens (subjects) are protected by several pieces of legislation, namely

(a) The Computer Misuse Act 1990
http://www.opsi.gov.uk/acts/acts1990/Ukpga_19900018_en_1.htm which criminalises;

(b) The Data Protection Act 1998
http://www.opsi.gov.uk/ACTS/acts1998/19980029.htm which protects civilly;

(c) The Freedom of Information Act 2000
http://www.opsi.gov.uk/ACTS/acts2000/20000036.htm

(d) The Human Rights Act 1998
http://www.opsi.gov.uk/ACTS/acts1998/19980042.htm

and there is common law in tort to cover slander, libel, defamation and misrepresentation. There is also criminal slander.

There are probably other pieces of ad hoc legislation and common law here in the UK and you could probably go quite obscure if you wished.

There is some regulation occurring concerning ISP's and I think there is some limitation currently being drafted concerning ISP's and child pornography.

As an issue of Jurisprudence - there needs to be a balance between freedom of thought and expression, privacy and criminal conduct such as incitement to do something bad such as dishonesty or degrading which is an ethical issue.

Check out my blogspot for ideas in jurisprudence.

Regards.

Lesley

 

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