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.

  

Finally, A Pirate Party...

Following in the footsteps of political activists in Europe, two people have just formed a new political party named the Pirate Party of the United States.

Read a great interview with the founders of the Pirate Party.

Here is an excerpt from their mission statement:

The Pirate Party of the United States is this country's version of the Piratpartiet, a Swedish political party that wants to "fundamentally reform copyright law, get rid of the patent system, and ensure that citizens' rights to privacy are respected." As a fraternal party, the PPUS shares similar goals while working within the political context of U.S. to achieve them. For far too long, Big Media copyright cartels like the Motion Picture Association of America and the Recording Industry Association of America have held back technological progress and individual freedom. They have done so through cutthroat litigation against ordinary Americans, interfering with peer-to-peer networks by flooding them with bogus files, and corrupting the political system with unscrupulous lobbying and political donations. Similarly, the pharmaceutical firms of the Pharmaceutical Research and Manufacturers of America have, through the power of their medicine patents, denied lifesaving medical treatment to the world's poorest people suffering on a horrific scale just to raise their profit margins.

It seems highly unlikely that the Pirate Party will win any Congressional seats in America's two-party winner-take-all system. However, any of this group's efforts should at the very least help legitimate the cause of reforming our overly stringent digital copyright laws.