'Law in Cyberspace' is an Oxymoron
Roger Clarke

Principal, Xamax Consultancy Pty Ltd, Canberra

Visiting Fellow, Department of Computer Science, Australian National University

Version of 28 March 1997

© Xamax Consultancy Pty Ltd, 1997

Invited Address to Cyber://Con'97 'Rules for Cyberspace?', Hyatt Regency Hotel, Chicago Ill., June 4-7, 1997

This paper is at http://www.anu.edu.au/people/Roger.Clarke/II/CyberLaw.html

Abstract

Transactions in cyberspace are trans-jurisdictional, and the prospects of them submitting to conventional legal authority are remote. Effort should not be invested in the crumbling institutions of the nation-state, such as conventional law, and conventional lawyers. Rather, the interests of electronic communities, and of people and corporations conducting electronic commerce, will be served through the marriage of instrumental anthropology and software engineering.

Contents

Introduction

Law and Order is Desirable

Conventional Legal Authority Is No Longer Feasible

Is Semi-Formal Legal Authority Feasible?

Is Community-Based Control Feasible?

What Strategic Options Exist?

Conclusions

References

Introduction

[Lead-In Text Needed]

This paper commences by considering the motivations for law and order in cyberspace. Rather than merely presuming that the rule of law is desirable, it undertakes an analysis of the risks than netizens confront.

An assessment is then undertaken of the extent to which legal authority is feasiblt in cyberspace. This involves careful definition of supra-jurisdictionality, and of the nature of identified, anonymous and pseudonymous transactions. The conclusion is reached that a significant proportion of cyberspace activity will be beyond the reach of conventional, geographically-limited jurisdictions.

Consideration is given to the prospects of semi-formal legal authority, and of community-based control mechanisms satisfying the needs of people and corporations operating in cyberspace. The answer is a qualified 'yes', provided that the requisite investments is made in understanding and designing for electronic communities and electronic commerce. Some suggestions are made as to strategies that can be adopted.

Law and Order is Desirable

Risks in Cyberspace

information

digital assets and transactions

monetary assets and transactions

physical assets?

life and limb?

Electronic Communities

Electronic Commerce

Conventional Legal Authority Is No Longer Feasible

Trans-jurisdictional and extra-jurisdictional challenges

Supra-jurisdictionality

Identification, anonymity and pseudonymity

Recognised authority and rule of law

The short history of the nation-state

Is Semi-Formal Legal Authority Feasible?

Text

Is Community-Based Control Feasible?

Text

What Strategic Options Exist?

(1) Salvaging legal authority - material at the end of ASC97.html

(2) Cyberculture

Conclusions

Replicating conventional legal authority in cyberspace is fraught with difficulties. Law in cyberspace will be effective only in relation to assets that exist, and transactions that occur, within a single and identifiable geographical jurisdiction, or within a cluster of geographical jurisdictions that negotiate and administer effective mutuality.

Significant proportions of the social processes of electronic communities, and of the economic activities of electronic commerce, will not be constrained within single jurisdictions or jurisdictional agglomerations. In circumstances where the players actively seek to avoid regulation, a rich set of means will be at their disposal.

The inescapable implication is that black-letter law will be far less important in cyberspace than lawyers would like it to be. Regulatory mechanisms will be far less formal than conventional law enforcement agencies and courts of law.

Netizens, both personal and corporate, will be far better served by collaboration among instrumental anthropologists and software architects, than by band-aid efforts by legal theorists, economists and legislators. A revolution powerful enough to shake the foundations of the nation-state is capable of undermining the foundations of entrenched professions as well.

References

Prior papers by the same author examine many aspects of the topic in greater depth, particularly the following:

Clarke R. (1993) 'When Do They Need to Know 'Whodunnit?' The Justification for Transaction Identification; The Scope for Transaction Anonymity and Pseudonymity', March 1993, at http://www.anu.edu.au/people/Roger.Clarke/DV/PaperCFP95.html

Clarke R. (1994) 'Information Infrastructure for The Networked Nation', November 1994, at http://www.anu.edu.au/people/Roger.Clarke/II/AbstractIIMonograph.html

Clarke R.A. (1995) 'Human Identification in Information Systems: Management Challenges and Public Policy Issues' Info. Technology & People 7,4 (March 1995). At http://www.anu.edu.au/people/Roger.Clarke/DV/HumanID.html

Clarke R. (1995) 'Net-Ethiquette: Mini Case Studies of Dysfunctional Human Behaviour on the Net', April 1995, at http://www.anu.edu.au/people/Roger.Clarke/II/Netethiquettecases.html

Clarke R. (1996) 'Regulating the Net', at http://www.anu.edu.au/people/Roger.Clarke/II/Regn.html

Clarke R. (1996) 'Cyberculture: Towards the Analysis That Internet Participants Need', April 1996, at http://www.anu.edu.au/people/Roger.Clarke/II/CyberCulture.html

Clarke R.A. (1996) 'Cryptography in Plain Text' Privacy Law & Policy Reporter 3, 4 (May 1996). At http://www.anu.edu.au/people/Roger.Clarke/II/CryptoSecy.html

Clarke R.A. (1996) 'Crypto-Confusion: Mutual Non-Comprehension Threatens Exploitation of the GII' Privacy Law & Policy Reporter 3, 4 (May 1996). At http://www.anu.edu.au/people/Roger.Clarke/II/CryptoConf.html

Clarke R. (1996) 'How Do You Cope With Censorship? An Analysis for IT Services Executives' Invited Address to CAUDIT (the Conference of the Australian Universities' Directors of IT), 23 August 1996, at http://www.anu.edu.au/people/Roger.Clarke/II/CensCope.html

Clarke R. (1996) 'Issues in Technology-Based Consumer Transactions' Invited Address to the Annual Conference of the Society of Consumer Affairs Professionals (SOCAP), Melbourne, 26 September 1996, at http://www.anu.edu.au/people/Roger.Clarke/SOS/SOCAP96.html

Clarke R. (1997) 'Regulating Financial Services in the Marketspace: The Public's Interests', Invited Address to the Conference of the Australian Securities Commission Conference on 'Electronic Commerce: Regulating Financial Services in the Marketspace', The Wentworth Hotel, Sydney, 4-5 February 1997, at http://www.anu.edu.au/people/Roger.Clarke/EC/ASC97.html

Clarke R. (1997) 'The Monster from the Crypt: Impacts and Effects of Digital Money', Paper for Panel on 'Governmental and Social Implications of Digital Money', at the Computers, Freedom & Privacy Conference (CFP'97), San Francisco, 12-14 March 1997, at http://www.anu.edu.au/people/Roger.Clarke/EC/CFP97.html

Clarke R. (1997) 'Encouraging Cyberculture', April 1997, at http://www.anu.edu.au/people/Roger.Clarke/II/CAUSE97.html

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