Joel, you’re doing some interesting work regarding states enforcing their policies
through Internet instruments. Tell us more about the types of Internet instruments
a government might use and the reasons that it might use them.
I have written about three types of online instruments that governments might
use to enforce state decisions: electronic borders, electronic blockades and
electronic sanctions. These can be constructed using tools such as packet
interception, viral email, filters and denial of service attacks. While these
tools are usually associated with hackers or wrongdoers, states have legitimate
reasons to use the same techniques in order to enforce court decisions and laws
adopted through the democratic process.
Your claim seems to dovetail quite nicely with Larry Lessig’s mantra that “code is law” and
Shanthi Kalathil and
Taylor Boas’ challenge to
“the Internet is a virus of freedom” myth. Have any of them commented on your
Larry has really built on my work. In articles in the Stanford Law Review
and the Berkeley
Technology Law Journal among other places, Larry Lessig credits my earlier
work on “lex informatica” – a far more technocratic term-- as one of the key
sources for his writing on “code.” In fact, I first began writing about the
regulatory power of technologies in a 1993 article on data privacy Rules of the Road
on Global Electronic Highways: Merging the Trade and Technical Paradigms
for the Harvard Journal on Law & Technology. Then, in 1996,
I gave a paper Governing
Networks and Rule-Making in Cyberspace on a panel with Larry where I
began to develop the term “Lex informatica” to describe the regulatory implications
of architecture. By 1998, I wrote a major piece on Lex Informatica:
The Formulation of Information Policy Rules through Technology in the
Texas Law Review that more extensively spelled out the use of technology as
a parallel form of regulation. Larry’s excellent book the following year reached
a much wider audience.
What prompted your interest in this area?
A college mentor at Dartmouth who worked at the vanguard of social science
computing sparked my interest in technology. For my undergraduate thesis in
1982, I had to learn some computer skills and the mechanics of TCP/IP and gateway
access points to transfer research data from a foreign computer to the Dartmouth
Time Sharing System. Two years later, when I was in law school, I had a fascinating
summer job with the general counsel of Citibank’s Information Services Division
that joined my background in social science computing with law. From then
on, I was hooked.
What has changed the “conventional wisdom”
that states have no way to enforce their laws online?
The technology itself. Just as Internet technologies pose challenges to states’
enforcement powers, the same technologies provide new tools for states to enforce
their laws. The conventional wisdom was that a state needed either the person
or the person’s assets within the state’s physical territory to enforce the
state’s law. Technology makes that conventional wisdom obsolete. States can
use technology to enforce their laws and judgments directly online. Hacking
tools, spam and other online instruments have police-like powers that states
Your SSRN paper, States
and Internet Enforcement, is currently available for download. Are you planning
on writing a book?
Yes, the paper is actually part of my larger book project “Information Wars
in a Networked Society” that takes an iconoclastic view of highly publicized
Internet regulatory controversies. I am exploring the struggle over network
rule-making between technical elites and democratic governance.
What do you think of the recent claims by Symbiot?
I am a little skeptical about Symbiot’s claims because the press release is
so vague on the type of response that its software proposes. However, the claim
does illustrate that companies are trying to develop more robust Internet enforcement
Which Internet instruments do you feel have the most potential
for misuse by government and/or big businesses?
The use by government of any of the instruments without proper due process
protections would be very troubling. Those that cause damage to innocent third
parties such as DOS attacks have the most harmful risks. With respect to
business, computer crimes statutes already constrain the use of Internet self-help
To your knowledge, does the US have any clear cut “rules
of engagement” for this type of regulation?
While there are rumors of policies for information warfare, I focus on the
enforcement of laws and judgments. There are clearly no ‘rules of engagement’
spelled out in US law at this time. We have not yet contemplated court orders
for online enforcement.
Many of us shudder at the ways other governments use technology
to enforce their policies. But how might other countries view our cyber policies?
Other countries object to a US-centric view of the Internet and view our cyber
policies in much the same way we see those abroad with which the US disagrees.
For example, the Yahoo case in France shows how other democracies do not agree
with the US policies on hate speech.
In fact, you took an interesting stance on the
“Ordinance en reféré” the Tribunal de Grande Instance de Paris issued
against Yahoo!. In your SSRN paper, Yahoo and Democracy on the Internet, you argued:
“The ruling is an important decision
that will promote the respect of democratic values on the Internet and the respect
of democratic values in the development of Internet technologies…the Yahoo!
decision represents an affirmation of non-US democratic values and comes at
a critical developmental juncture for the Internet.”
Might this suggest that libertarian-oriented
techies need to grow up and respect varying public values across borders?
Libertarian-oriented technologists are certainly entitled to views that may be
contrary to public values in various countries. But, a democracy cannot allow
a group of unelected, non-representative techies to defy the rules and policies
adopted through the democratic process. Techie’s may call their presumptuous
defiance of democratic choices “libertarian”; others would call it call anti-democratic
or dictatorial. Technologists will have to get used to the idea that since technical
choices are not policy-neutral, democratic policy-makers have a fundamental role
to play in the definition of the values that are embedded in technologies.
would you have to GrepLaw readers who object to some of these tools that governments
use? Particularly to the way some US-based companies knowingly aid certain regimes?
Become engaged in the political
debate, join political lobby groups, lobby legislative leaders, and write op-ed
pieces to publicize the issues.
I noticed from your e-mail signature
that you’re a visiting professor at l’Universite de Paris-Sorbonne
and l’Institut d'etudes politiques de Paris.
You also recently gave a seminar
at the Oxford Internet Institute (OII).
Tell us about your experiences there.
As part of my academic sabbatical this year, I had the opportunity to teach
a graduate course on Internet regulation jointly at the two schools. The students
were a wonderful mix of advanced law students and graduate political science
students. My class was their first exposure to Internet law and policy and
they were quite engaged. Indeed, the experience was very nostalgic for me since
I have a graduate degree in international economic law and a Ph.D in law from
Has there been a significant
difference between the US and non-US reactions to your work?
Non-US audiences are more receptive to a positive role for government than
US audiences and are more willing to accept state regulation than US audiences.
This means that non-US audiences tend to be more receptive to the use of technologies
for public policy purposes than US audiences.
You seem to be a techie at heart. What operating system
do you use? Wintel, Linux, Mac, or….?
I’ll let you guess.
Well, your e-mail header reveals that you too have been assimilated into the Borg.
Thank you for talking to GrepLaw. Please keep us updated on your work and research.
Joel Reidenberg was interviewed by Roger E. Rustad, Jr. (scubacudaNO@SPAMiname,com),
senior editor of the Berkman Center’s