The 'Law of the Horse': How Should We (re)Think Internet Governance?

"I removed 'cyberspace' from my vernacular. The idea, which I grew up with, of going into a place separate from the real world, is something my students just don't recognise."

― Clay Shirky

In the 80's the term 'cyberspace' has been used to qualify and quantify new communication canals[1] - the internet was seen as a parallel geographic space in which users could meet each other and share information.[2] Voices arose to underline the need to regulate this space which has been called the 'new wild west' - a brand new world to discover and to dompt.[3] Cyberspace is an infinite artificial world in which humans can navigate in information-based state.[4] The idea of regulating this space is called internet - or cyberspace - governance, and it has gained momentum.

Since the first theories in the late 20th century until today, scholars agree on the need to apply regulations to the cyberspace.[5] However, they disagree on the 'how'. As in governance matters in the analogue world, it is highly likely that individuals in charge come to different conclusions on how to assess the regulation to the cyberspace, depending on their own definition of it, and their own views on what good governance is. Internet governance can be defined as a set of rules, shared norms and principles that are applied to the cyberspace by its stakeholders in order to shape its evolution and the use of it.[6] Driven by socio-ethical or economic and political consideration, the regulation of the cyberspace is debated in several disciplines. When it comes to legal scholars, two main movements seem to distinguish themselves in this ocean of literature. On the one hand, 'applied cyberlawyers' consider the internet as extensio of the real world and, following this thought, pre-existing regulations applicable in the analogue world should be applied in the digital space.[7]On the other hand, 'regulatory cyberlawyers' highlight the particular nature of the cyberspace, and consider that its singularities need to be taken into consideration in order to develop new regulations that apply in this space.[8]

The question is whether the cyberspace should be regulated by implementing new regulations only applicable to it or it should be analogously subject to the regulations at hand. In other words, should a cyberlaw be created?

In order to answer this question, this article will first expose some theories of applied cyberlawyers in favour of an extension of regular provisions to the cyberspace. After that, it will highlight the arguments raised by regulatory cyberlawyers in order to explain why the author considers this as necessary to develop a specific set of rules for the digital world.

The major argument against the development of cyberlaw has be theorised in the mid-90's by Frank Easterbrook, who became at the same time the herald of applied cyberlawyers.[9] He based his theory on Gerhard Capser's doctrine - 'the law of the horse'. Capser, back then dean of the university of Chicago Law School, ironically said that he was surprised the law school did not offer any course about the law of the horse - highlighting the increasing number of law courses applied to specific themes. Easterbrook argued against the rise of what has been named cyberlaw.[10] According to him, the creation of a new legal field should pursue the purpose of enlighting the whole legal sciences. Law, even if it is indeed evolving, does so within pre-existing boundaries. The main legal fields have the general purpose of containing the law which can then be applied to specific concerns. By stating so, Easterbrook puts a direction to the analyse of legal cases: there is the law, and it applies to specific issues. If the issue is new, the law evolves accordingly and solves it. Following this thought, it has no sense to talk about 'cyberlaw' as a new legal field, as it would just be a collection of general legal sources that apply to the cyberspace. So, it would e.g. contain intellectual property and copyrights for copied pieces online, civil and obligation law concepts for buying online etc.

This argument has been backed-up by legal scholars such as Lyria Bennett Moses, who considered that technology do not define the body of law.[11] The law applies to individuals or to their socio-human interactions and it can be analogously applied to such in the digital world. Moreover, most legal issues raised in the digital world are not new, and so they can be solved as they have been in the real world.[12] The concept of newness is at the core of her argument. Moses argues that when we talk about technology or cyberlaw, we focus on the new and innovative (disruptive) technologies. No scholars argue in favour of the development of a boiler law, or in favour of a law regulating cars in themselves. This is because these are technologies that do not disrupt, that are not new. They might have been new at a former stage, yet they are not. Moses states that this applies to the cyberspace, which has been a novel innovation in the 20th century but is not anymore. This being said, there might be no need to qualify the cyberspace as regulatory target, as its disruptive potential will decrease and it will be the occasion to see that the issues raised are not that new.

A major piece of article by Lawrence Lessig has been refuting Easterbrooke's law of the horse. He considers the cyberspace as a distinct and singular space that must be distinguished from the real world.[13] Lessig argues with his modalities of regulations thesis that the cyberspace is particular as it is designed through coding. This singularity must be taken into consideration, as it permits a design that is totally different than the real world, which remains as it is.[14] His main argument is that as the cyberspace is a specific space with its own design and characteristics, so the applied law must be specifically designed to apply to it.

As an extension of this thesis, Andrew Murray claims that "regulatory intervention" is no single act failing or succeeding depending on "subjective standards" set by the regulator.[15] It should rather be reflecting the environment or target it is aimed at - in our case the cyberspace.[16] Murray backs up Lessig by stating that the cyberspace is of complex and singular nature and so the regulatory intervention must necessarily be dynamic and actively adapt to its specific nature. But Murray goes beyond Lessig's thesis, as he argues in favour of the involvement of all stakeholders - regulator, regulatee and consumer. After having assessed how the current law has failed in solving the issue raised by the new environment, a new rule shall come to adapt to the feedback raised by the previous regulatory intervention.

Both regulatory heories fail at defeating Easterbrooke's key argument. They argue in favor of a specific cyberlaw by claiming special circumstances. If the specificities of the cyberspace must be taken into consideration by the regulator, it might also be necessary to rethink the target of those regulations. Rather than targeting the cyberspace in itself, it might be accurate to target the interhuman interaction taking place within its frame.[17] The internet provides for a control shift that is specific to the online context, where everyone can raise their voice. For instance, to bypass censorship in the real worlds, dissidents can be active online.[18]

The regulator in itself should be rethought. Indeed, in the analogue world, the state is competent within its borders. But in a borderless digital world, the legitimacy and practicability of state-made governance rules is questionable.[19] The question remains indeed who is legitimate to claim ownership over the cyberspace. Taking this specificity into consideration, it is important to rethink internet governance by developing new kinds of cross-border authorities with an increased legitimacy to regulate the cyberspace.[20] In this attempt, involvement of all stakeholders is necessary.

The division between applied and regulatory cyberlawyers is still relevant today, and the law of the horse is still an important piece for most applied cyberlawyers. Regulatory cyberlawyer too often claimed special circumstances in order to refute it. However, if the specificities of the cyberspace must be taken into consideration, it is important to look beyond in order to see that the general interhuman and social interactions within the cyber-frame is singular. Rather than targeting the cyberspace, regulatory theories should consider assessing the power shift that happens online.

Literature:

[1] R Ottis and P Lorents, 'Cyberspace: Definition and Implications' [2011] 5th European Conference on Information Management and Evaluation, ECIME 2011 267.

[2] ibid.

[3] Alfred C Yen, 'Western Frontier or Feudal Society: Metaphors and Perceptions of Cyberspace' (2002) 17 Berkeley Technology Law Journal 1207.

[4] Michael (ed ) Benedickt, 'Cyberspace: First Steps', The MIT Press, Cambridge, MA and London, UK (CUMINCAD 1991) <https://papers.cumincad.org/cgi-bin/works/Show?_id=4eed> accessed 18 December 2020.

[5] ibid., 7.

[6] Dr Jovan Kurbalija, An Introduction to Internet Governance: 7th Edition (Diplo Foundation 2016) 5.

[7] Andrew Murray, 'Looking Back at the Law of the Horse: Why Cyberlaw and the Rule of Law Are Important' [/01/7] SCRIPTed <https://script-ed.org/?p=1157> accessed 16 December 2020.

[8] ibid.

[9] Frank Easterbrook, 'Cyberspace and the Law of the Horse' (2015) 1996 University of Chicago Legal Forum <https://chicagounbound.uchicago.edu/uclf/vol1996/iss1/7>.

[10] ibid.

[11] Lyria Bennett Moses, 'How to Think about Law, Regulation and Technology: Problems with "Technology" as a Regulatory Target' (2013) 5 Law, Innovation and Technology 1.

[12] Joseph H Sommer, 'Against Cyberlaw' (2000) 15 Berkeley Technology Law Journal 1145.

[13] Lawrence Lessig, 'The Law of the Horse: What Cyberlaw Might Teach' (1999) 113 Harvard Law Review 501.

[14] Lawrence Lessig, Code (Version 20, Basic Books 2006).

[15] Andrew Murray, The Regulation of Cyberspace: Control in the Online Environment (Routledge 2007).

[16] ibid.

[17] Chris Reed, Making Laws for Cyberspace (Oxford University Press 2012).

[18] Andrew L Shapiro and Richard C Leone, The Control Revolution: How the Internet Is Putting Individuals in Charge and Changing the World We Know (Perseus Books 1999).

[19] Chris Reed and Andrew Murray, Normative Competition in Cyberspace (Edward Elgar Publishing 2018) <https://www.elgaronline.com/view/9781785364280/10_chapter5.xhtml> accessed 16 December 2020.

[20] David R Johnson and David G Post, 'Law and Borders - the Rise of Law in Cyberspace' (Social Science Research Network 1997) SSRN Scholarly Paper ID 535 <https://papers.ssrn.com/abstract=535> accessed 16 December 2020.