As anyone whois familiar with the judicial system knows, it takes a long time to get something done. With the advent of the Internet almost two decades ago, there still isnit any definite answer to the question of who has jurisdiction over a dispute that affects people all over the world.
If youire in the United States, free speech is almost completely protected - the restrictions placed only on the appropriateness of the time, place and manner of the speech in question. With respect to material online, both software and online expressions are considered by the US judicial system to also be free speech, restricted only by the same rules that apply to other kinds of expressive speech. A group of French organizations recently sued Yahoo! in the French courts for displaying Nazi material - illegal under French law - and attempted to order Yahoo! to prevent the display of that material to French residents. However, a later proceeding in a US court ruled that the French order was unenforcable in the United States.
Herein lies a problem. If the US is allowed to say what can and canit go on in someone elseis country, whois to say that another country coudnit do it too? In China, all Internet users should be registered with the government; in Saudi Arabia, Internet access is restricted to certain groups. They and other countries are obviously concerned with what their users may access. As a recent ZDNet article suggests:
While parties on both sides of such cases wage debates over whose laws apply, there is one thing they can agree on: The confusing snarls over jurisdiction will continue for years. Indeed, most of the cases so far have involved the United States, France and Canada, regions hardly known for restrictive laws governing speech and commerce.
What happens when countries with harsher laws--such as those governed by dictators or strict religious rules--weigh in with judgments of their own and reach across borders to try to enforce them?
Disturbing thoughts indeed, and this is certainly something that needs to be addressed. Copyright law has been fairly well covered; for other actions on the Net, however, thereis still a very gray area that the law has yet to catch up on, and the biggest among those is the freedom of speech. Relying on the current basis of geographically-based law isnit going to solve problems; rather, itill create new ones. Location is irrelevant on the Internet, and basing a legal decision on the physical location of a person or thing in question is inadequate when the effects of their actions may be considered to be felt all over the world. A solution for this problem needs to be a solution for everybody.
An international treaty is something that many have proposed, but waiting for one to be formed, ratified and come into force is worse than watching paint dry - especially in a place where technologies and ideas move so quickly that such a treaty will almost assuredly be immediately irrelevant to those issues it didnit predict or for which it didnit make room. Thatis not to say that itis not being tried, with a icyber-crimei treaty in the works in the Council of Europe and a Hague Convention on the extent to which a country should enforce another countryis laws. The latter in particular has been subject to several criticisms, including the idea that it does not adequately cover defamation concerns.
So the question seems to be whether a top-down system, where some group or convention sits at the top and informs the actions of the many, is practically feasible or even useful.
Over the many years it took to get where we are today, standards for Internet technologies and methods were derived from consensus between all the parties concerned. Things became accepted as standard, not by rulings from legislative bodies, but by the law of two feet: walk away from the things that suck. HTTP became the protocol used for the Web because it was preferred. No government or organization made it the rule, it just happened that way because it was good. Now, of course, itis ubiquitous. This is democracy at its finest: the decision was made by the people who were most affected by the policy in question.
Similarly, on large Web communities, a system of rules are grown from the usersi concerns: what is acceptable in a teenage girlsi chat room, for example, is frowned upon in places like the WELL. People who donit want or care to find out about *~*~*JuSTiN TiMbErLakE CuZ He Iz ToTaLLy HoTt!!1`*~*~* learn, and learn quickly, that they donit want to go there anymore. They can - and do - vote with their feet, their eyeballs and their pageviews.
This is something that the users of the Internet are good at, and demonstrably so. Why not simply allow online communities to form their own standards, then? It would be preferable - indeed, it would be perfect - if there were a way for the existing judicial systems in every country to come to some kind of agreement with regard to regulating speech, but the fact of the matter is that the process for doing so is long, slow, tedious and cumbersome. Organizing from the bottom-up, on the other hand, is something that has been demonstrated to work, and work well. Standards evolve from people and groups voluntarily adhering to a set of rules, taking responsibility for their own actions according to their preferences. As a system emerges that works, more groups adopt it until it becomes almost ubiquitous, with those who wonit participate closed out. They can form their own groups, or bow out altogether.
Responsible, informed people can - indeed, they should - make their own choices. This is by no means a perfect solution to the problem of regulating online speech, but neither is the current system of international law. Waiting for the law to catch up isnit going to solve the problems we face today, but allowing the Net to find a system on its own will bring results that are both speedy and relevant. Given a chance to make its own rules, itis very likely that it could work.
"What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body, no matter whether of the autocrats of Russia or France, or of the aristocrats of a Venetian Senate."