Section 4: Competing Sovereigns
In section four, Lessig identifies that real regulation is only possible with the right kind of architecture. In Vietnam, for example, the socialist government is in principle an absolute regulator; however, because of the lack of infrastructure, society and business proceed with little regulation by the government. In contrast, cyberspace provides the infrastructure that supports regulation to the highest degree.
In a world with the right kind of architecture, who chooses the rules?
“As more move online, the claims of one sovereign to control speech or behavior will increasingly conflict with the claims of other sovereigns. That conflict will prove to be the most important generative fact for the Internet to be” (281).
In cyberspace, sovereigns choose the rules. It is not a democracy. Online, one can find many hints of democratic control, such as ranking blogs and voting up comments, but this is not the real thing. Being a regular member of a website does not give you any more right to over the code—and thereby, the rules—controlling the website.
Sovereignties come in two flavors: citizen-sovereignties, which are defined by geography (e.g. your local city hall); and merchant-sovereignties, which are selected by choice (e.g. your choice of toothpaste). In cyberspace, we choose our sovereigns, each a set of rule-sets competing for our attention. But as we become more internationally connected, cyberspace must become more of a citizen-sovereignty if it is to claim legitimacy in the real-space. “Local” spaces in cyberspace must eventually comply with an international system of oversight, just as individual states comply with Federal regulations.
What happens when sovereigns collide?
“There will be no nation that has no speech that it wishes to regulate on the Internet. Every nation will have something it wants to control. Those things, however, will be different, nation to nation. The French will want to regulate Nazi speech; the Americans will want to regulate porn; the Germans will want to regulate both; the Swedes will want to regulate neither” (287).
In another case, iCraveTV, a Canadian web company that streams online TV, is in conflict with the NFL, which demands either proof that all Americans are barred from access or that iCraveTV be shut down.
Lessig expects us to face these frictions at an increasingly rate because we are increasingly found simultaneously in cyberspace and in real-space. Two theories have developed on the future resolution of regulation on the Internet. Johnson and Post believe that the cyberspace should have its own goals. Goldsmith and Wu believe that legal disputes will be settled as they arise between competing jurisdictions. Lessig examines three possible resolutions to competing sovereignty in cyberspace.
The One Law Rule reflects U.S. hegemony in setting international regulations. Examples include the Child Online Privacy Protection Act, The Digital Millennium Copyright Act, and the Patriot Act—all of which can be applied to international Internet vendors. However, there are signs that other governments are fighting back, meaning that some cooperation is necessary.
The Many Law Rule is an international Internet protocol that would allow cyberspace to work in conjunction with local laws. Using an ID layer, users can prove their citizenship. All websites would have access to a table used to determine which laws apply to which citizens. Governments could then require servers in their jurisdiction to follow the laws set in the International Protocol.