Just in Time Justice


Private Law Systems  
Recently there has emerged a strain of libertarian thinking cheering the rise of privatized forms of governance. Private security firms, homeowners associations, restrictive deeds in gated communities, mandated arbitration in employment contracts. Once you opt in to the system the private governance structures take effect. These types of private law systems should become increasingly appealing for e-commerce. Already the first dispute resolution mechanisms for the internet have emerged as a way for the "new economy" industries to circumvent the sluggish real-world legal system.

E-Resolution
Domain Magistrate

The issues become whether public sector judges will be able to keep up with the unfettered decision making abilities of private arbitrators and judges. Judges might still be the rule makers of choice, it's just that they might be wearing suits and ties instead of long black robes.

Lessig and Code  
Laurence Lessig (who recently published Code and other laws of Cyberspace), addresses another aspect of this issue. He argues that the regulation of cyberspace will be implemented though the software structures that get embedded in the internet itself. He makes a pretty good case that regulatory code of the internet won't be written in the statute books, but instead will be embedded in the protocols and software that forms the foundation of the internet.

Lessig Home Page w/articles
Really good, long, and recent Lessig article

What he basically envisions coming down the pike is an enclosure of the common spaces of the internet due to the corporate interests of e-commerce and the technologies that will enable them to practically extinguish the intellectual property commons of the internet. One example he points to are new technologies for the protection of copywritten materials on the internet. One example he gives is the development of "trusted systems" - software and hardware that would put strict limits on the ability of users to copy, lend, or distribute digital information.

The ominous thing is that these kinds of technological solutions to digital copyright problems can make intellectual property proprietary for longer than the public policy dictates of copyright law. The use-contracts that can be wrapped around the use of digital information with trusted systems can force the users of digital information to opt-in to a much more restrictive use privilege, instead of outright ownership. Instead of getting possession of a copyright protected book, you instead get a temporary read-only privilege for one price, a permanent copy for a higher price, a price for a loanable copy...etc.

While in the real world the transaction costs of doing the accounting for these partial use-rights are too high to make it practical, the extremely low transaction cost environment of the internet suddenly makes these new regimes for the protection of property feasible. In Lessig's darkest vision of the future internet, once you step past your ISP, the meter is going to start running - with either micropayments for information or extensive tracking of use for marketing purposes. I'm fairly skeptical about the possibility of a pay-per-view internet, but after reading about the declining effectiveness of banner ads, one wonders how most sites are going to make any money at all in a few years.

Code as Regulation  
Lessig definitely seems to be onto something with his analysis of the regulatory implications of internet infrastructure. With his technological emphasis the question become a matter of whether the judges will remain quick enough with their rule making in the face of accelerating technological change. The temptations of a quick technological fix may come to be the preferred solutions for the legal problems of the digital age. Will rule making for society pass from the hands of the judges to the engineers?

This goes beyond the Internet - after all the new solutions to catch traffic scofflaws aren't legalistic, they are the technologies of automated cameras and radar guns. With the political system in disrepute, and legal system comparatively slow in the new environment, the technological solution has great appeal. (such as the success(?) of the V-chip in contrast to the failure of the CDA). Pulling these technological levers for rule making might be one way for a delegitimized government to regain some of its control over issues that have been ceded to the judiciary. But to do that would require greater expertise and foresight. Perhaps this could be the impetus towards the "personalized, swift, highly flexible, authoritative (but not authoritarian), and future-oriented system of governance" that could replace current republican/majoritarian political system.


Written by Mark Justman
Copyright 2000
Posted 01/07/00
http://go.to/futureplex