[iwar] [fc:Damn.the.Constitution:.Europe.must.take.back.the.Web]

From: Fred Cohen (fc@all.net)
Date: 2002-08-10 08:29:29
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Date: Sat, 10 Aug 2002 08:29:29 -0700 (PDT)
Subject: [iwar] [fc:Damn.the.Constitution:.Europe.must.take.back.the.Web]
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Damn the Constitution: Europe must take back the Web
By Bill Thompson
Posted: 09/08/2002 at 14:01 GMT

Opinion I've had enough of US hegemony. Iit's time for change -and a closed
European network.

Today's Internet is a poor respecter of national boundaries, as many
repressive governments have found to their cost. Unfortunately this freedom
has been so extensively abused by the United States and its politicians,
lawyers and programmers that it has become a serious threat to the continued
survival of the network as a global communications medium. If the price of
being online is to swallow US values, then many may think twice about using
the Net at all, and if the only game online follows US rules, then many may
decide not to play.

We have already seen US law, in the form of Digital Millennium Copyright
Act, used to persuade hosts in other countries to pull material or limit its
availability. US-promoted 'anti-censor' software is routinely provided to
enable citizens of other countries to break local laws; and US companies
like Yahoo! disregard the judgements of foreign courts at will.

Congressman Howard Berman's ridiculous proposal to give copyright holders
immunity from prosecution if they hack into P2P networks is the latest
attempt by the US Congress to pass laws that will directly affect every
Internet user, because no US court would allow prosecution of a company in
another jurisdiction when immunity is granted by US law.

Unless we can take back the Net from the libertarians, constitutional
lawyers and rapacious corporations currently recreating the worst excesses
of US political and commercial culture online, we will end up with an
Internet which serves the imperial ambitions of only one country instead of
the legitimate aspirations of the whole world.

While this would greatly please the US, it would not be in the interests of
the majority of Internet users, who want a network that allows them to
express their own values, respects their own laws and supports their own
cultures and interests.

US domination has been going on for so long that many see it as either
inevitable or desirable. 'They may have their problems but at least they
believe in democracy, free speech and the market economy', the argument
goes. Yet today's United States is a country which respects freedom so much
that if I, a European citizen, set foot there I can be interned without any
notice or due process, tried by a military tribunal and executed in secret.

It has a government which respects free speech yet tries to persuade postal
workers to spy on people as they delivered their mail. Its Chief Executive
illegally sold shares when in possession of privileged information about an
impending price crash. ICANN, the body it established to manage DNS, had to
be ordered by a court to let one of its own directors examine the company
accounts for fear he may discover something untoward. And elected
representatives -like the aforementioned Howard Berman -are paid vast
amounts by firms lobbying for laws which serve their corporate interests.

These are clearly not the people who should be setting the rules for the
Net's evolution. Unfortunately today's Internet, with its permissive
architecture and lack of effective boundaries or user authentication, makes
it almost impossible to resist this technological imperialism.

Who trusts you, baby?
Fortunately the technology itself - in the form of trusted computer
architectures, secure networks and digital rights management - can be used
to rescue the Net from US control.
These developments, reviled and criticised by those inside and outside the
continental United States who hold on to an outdated and unrealistic view of
what the Net was or could become, are the key to its future growth and
usefulness. Whatever the libertarians say, they must be defended, promoted -
and properly controlled.

I believe that the time has come to speak out in favour of a regulated
network; an Internet where each country can set its own rules for how its
citizens, companies, courts and government work with and manage those parts
of the network that fall within its jurisdiction; an Internet that reflects
the diversity of the world's legal, moral and cultural choices instead of
simply propagating US hegemony; an Internet that is subject to political
control instead of being an uncontrolled experiment in radical capitalism.
It is time to reclaim the net from the Americans.
This will not be easy. In order to do this we have to reject two beliefs
that underpin our current understanding of the Net, and these beliefs,
although wrong, are dear to many.
The first is the idea that the Internet is somehow outside or above the real
world and its national boundaries. If I phone someone in Nigeria and suggest
a money-laundering fraud then it is obvious to all that I am breaking the
law in two countries, not in 'phonespace'. Nobody has ever suggested that
the content of the telephone network -all those voice calls -should be
somehow privileged and treated as outside the normal world.

Why, then, do we act as if our interactions with screen, mouse and keyboard
are different? If I send an email suggesting that I am in possession of $50m
and will hand it over in return for your bank details, why can't it just be
that I also am breaking the law in two countries, not in some mythical
'cyberspace' with its own legal system?

Losing the idea of 'cyberspace' simplifies things greatly.

The other thing we need to lose is the ridiculous belief that when we are
online we are somehow in 'another place' outside the real world. We need to
reject the philosophical bullshit which argues that there is an equivalence
between being simultaneously a 'citizen' of Maine and of the United States
and our co-existence in the real world and the online world *, and accept
instead the mundane reality that nobody has any real form of existence
online - either now or in the foreseeable future.

This makes our discussion a lot simpler because we no longer have to grapple
with the idea of having two forms of existence - the one that involves
breathing, pissing and fucking and the one that involves typing. We don't
have to stretch our legal or constitutional thinking to cope with the
apparent contradiction of being in 'two places' with different standards of
behaviour at the same time.

We can also deal with the problems of jurisdiction for online activity in
the same way as we deal with it elsewhere: in the UK we're perfectly happy
to prosecute someone for war crimes committed fifty years ago in another
country, so why are there problems if the crime involved the Internet? Under
English law a sex tourist can be prosecuted here even if he has sex with a
child in Thailand: surely prosecuting someone for promoting racial hatred on
a US-hosted website can't be that different?

This is not to claim that these issues are all simple, resolvable and
determinate, just to point out that we already have legal systems -
admittedly imperfect - in place that can deal with them mostly adequately,
most of the time. In general the few exceptions are not allowed to be used
as arguments for making bad law. We must not allow the Net to be the biggest
exception, creating the worst law of all.

Brave Old World
This is hard for many old-time Net users to accept, because we like the idea
that being online takes us into a new space, a new world. But it is simply
not the case: we are not creating a brave new online world out of our
electrons and pixels. It is all one world - the only difference is that we
currently lack the ability to map our online activity onto our real-world
lives with any degree of certainty. The result is that cyberspace appears
somehow to be divorced from the physical world - but this is just an
artifact of our current technologies and not a fundamental principle.

Once we clear our minds of these erroneous beliefs we can see that the US
has no right to determine how the whole Internet is run. Each country should
decide for itself. All we need to do is to mark out the network, using
trusted computers and secure networks to locate servers, hosts, networks and
people within geographically-defined areas - or nation states as they are
usually known - and let the countries get on with it. We can establish the
rule of law, national sovereignty and local values in those parts of the
network that fall within the jurisdiction of a particular country, and let
normal diplomatic, cultural and commercial channels deal with the
interaction between countries.

This would not stop the US treating its Constitution as the only true source
of wisdom or framing their discussions in terms that draw only from the US
political and economic tradition. But if they decide to run their part of
the Net according to the principles laid down two hundred and fifty years
ago by a bunch of renegade merchants and rebellious slave owners they would
not be able to force the rest of us to follow suit.

If they want a First Amendment online, or to let some gun-toting nut argue
that writing viruses is the online equivalent of carrying a concealed weapon
and so counts as a constitutionally protected right then they can go ahead -
the rest of us can do things differently. ('Viruses don't trash hard drives
- people trash hard drives.' )

A cyberspace in which each machine is 'within' a jurisdiction and where
actions can be mapped onto physical space will be very different from
today's Internet.

In the mapped network we will not have the absolute freedom of speech which
cyberlibertarians claim they want, but neither will we get absolute
oppression, absolute free market capitalism or even absolute communism. We
will instead get compromise, and regional or national variation, just as in
the real world.

Many will see this as a loss of freedom, but the freedom they value so much
is also the freedom to act irresponsibly, to undermine civil authorities and
to escape liability. It is the freedom to release viruses, abuse personal
data, send unlimited spam and undermine the copyright bargain. It is not a
freedom we need.

It is easy to see why this approach will be resisted by US activists, of
whatever political persuasion, who see the 'one world, one cyberspace'
approach as a convenient way to establish an online constitutional hegemony.
It will also be resisted by many of those who see any attempt to create
trusted software running on secure processors as the network equivalent of
the arrival of the black helicopters from the UN World Government Army.

However their position is untenable, because the vast majority of Internet
users need and want a secure network where they can use email, look at
Websites, shop, watch movies and chat to friends, and they are happy to
accept that this is a regulated space just as most areas of life are.

Even if we don't act we will still get a regulated network, because the
commercial interests which dominate the US know that it is a prerequisite
for a digital economy. However the shape of that network will be entirely
determined by US interests, just like today. It is therefore vital that a
different approach to the development of the Internet is proposed -and I
believe that Europe is the place for it to start.

Bring it back
Europe is the birthplace of the Web, with a wealthy, technically literate
population, a network infrastructure that rivals that of the US and a rich
cultural and political tradition which can counter US constitutional
imperialism.

An important factor in Europe's favour is that we retain a belief that
governments are a good thing, that political control is both necessary and
desirable, and that laws serve the people. These beliefs are now lacking in
the United States, rendering it incapable of acting to create any sort of
civic space online or allowing its government to intervene effectively to
regulate the Net.
The recently-agreed .eu ccTLD could be a rallying point for a serious
attempt to extend the EU online, adopting new standards for trusted
computing, regulating their use within EU countries and establishing a
European dataspace which would grow over time to become a major node in the
emerging trusted network that will replace today's Internet.

It will take political will and technological skill to do this, and it will
not be achievable overnight. But if we are to escape a world where
corporations build systems which are only capable of supporting US-style
online government, or where trusted software is a trojan horse carrying the
US constitution into our online life when we neither want nor need it, then
we need to act now.
A trusted network will not stop the Americans - or anyone else - opting out
and remaining with their existing unregulated Internet. Just like the
survivalists heading out to Oregon with their assault weapons and dried
food, those who don't want to be part of the great online civilisation could
establish their own enclaves, where they would be free to run the code of
their choice.
But inside Europe our values, our principles and our legal system can
determine how our part of the Net is run. Personal data would be protected
by law, and those who abused the information provided to them by individuals
would be prosecuted. Data flows into and out of Europe would be properly
regulated and controlled to ensure that neither spam nor viruses came in,
and that no personal data went out without explicit consent.

In Europe our copyright laws allow lending of material, and so media players
licensed for use within the dataspace would not restrict personal copying or
lending, although they would respect other rights.

In Europe community standards for freedom of speech differ substantially
from those of the United States, where any sensible discussion is crippled
by the constitution and the continued attempts to decide how many Founding
Fathers can stand on the head of a pin.

Over here, human rights legislation, interpreted by judges who are able to
use their intelligence instead of just relying on textual analysis of the
Bill of Rights, gives us a much better chance of tying online action to the
real world and integrating cyberspace with real space in way that benefits
both.

In the end, William Gibson was wrong: cyberspace is not another place, it's
just part of this space. There is no 'there, there' : in fact, it isn't
really there at all. The illusion is, in the end, only an illusion, however
consensual it may be. Not only does 'meatspace rule', but 'meatspace rules
rule' - the laws and regulations that govern the Net, whether they are
legal, social, architectural or code-based, will all come from the real
world, where judges, lawyers, programmers, politicians and - in some way
-citizens get to decide how our online activities and our real world lives
mesh and are linked.

The United States is incapable, for the reasons I've described, of
understanding this or of escaping its constitutionally-determined destiny to
attempt to establish hegemony over cyberspace.

It cannot be allowed to succeed, and so those of us within Europe need to
begin to work now to extend our culture onto the Net in all its complex
glory. We need to build our borders online and offer our citizens protection
within those borders, and escape from America.

* Much as I like Lessig's work, he just goes too far here. I blame law
school. Being a Cambridge philosopher manqu� I tend to have a more brutal
constructivist approach to this sort of thing. 

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