THE STRUCTURE OF ICT REGULATIONS
5.3 ICT REGULATION .1 Background .1 Background
5.3.2 The Codes-Based Theory
The theory of regulation by codes generally found its significance during the 1990s.
Some of the founders of this theory are Reidenberg117 and Lessig.118 It is sometimes compared with ‘techno-regulation’.119 Techno-regulations accept that both the codes
114 See in general the Dutch Policy Memorandum Legislation for the Electronic Highways of 1998 http://www.burojansen.nl/crypto/english/5.html (Date of use: 13 April 2016).
115 The term ‘regime’ is vastly defined in academic literature. However, for purposes of technology regulation ‘regime’ means ‘a system of ….rules, which in conjunction includes not only norms, but also the mechanisms of decision making and the network of involved actors’. See Heldeweg Legal design 59.
116 Morgan and Yeung Law and regulation 16.
117 Reidenberg JR “Lex Informatica – the formulation of information policy rules through technology” 1998 (76) Texas Law Review 553-584.
118 See generally Lessig L Code and other laws of cyberspace (Basic Books New York 1999), Lessig 1999 Harvard Law Review 546 and Lessig L “The path of cyberlaw” 1995 (104) The Yale Law Journal 17-46.
119 Brownsword 2005 Journal of Legal Studies 3.
165 and the design of the codes are indispensable to the ‘regulatory repertoire’.120 In the narrow sense, codes denote ‘computer codes’.121 The examples include a password, pin and username. In the broad sense, codes are referred to as the ‘architecture’122 and sometimes, the technical architecture of the Internet.123 This relates to all the hardware and software that function as normative rules.124 It comprises the layers that together make an ICT infrastructure. These layers are the content layer (the symbols and images), the application layer (the underlying infrastructure that the Internet or Web programmes operate on), the transport (TCP) layer, the Internet protocol (IP) layer (the infrastructure that handles the flow of data), the link layer (this is the interface between physical layer and the network layer) and the physical layer (the copper, wire and links).125
A study of the codes-based theory is divided into two (2) sub-sections. Sub-section (a) investigates the theory of Lex Informatica. Sub-section (b) examines the codes-based approach.
(a) Lex Informatica
Lex Informatica draws inspiration from the Law Merchant (Lex Mercatoria) of the Middle Ages.126 Law Merchant included the laws of different nation states.127 These laws were enshrined in the practices and customs of those nation states.128 It developed as a result of the necessity to regulate and control expansions in
120 Yeung Regulation by design 81.
121 Koops BJ “Criteria for normative technology – the acceptability of ‘Code as Law’ in light of democratic and constitutional values” in Brownsword R and Yeung K (eds) Regulating technologies: legal futures, regulatory frames and technological fixes (Hart Publishing Portland 2008) 157-174 158.
122 Lessig Cyberspace 134.
123 Bonnici Cyberspace 115.
124 Kesan and Shah 2003 Yale Journal of Law and Technology 281.
125 Chung M and Solum LB “The layers principle – internet architecture and the law” 2004 (79) Notre Dame Law Review 815-948.
126 Johnson and Post 1996 Stanford Law Review 1389.
127 Pollock F and Maitland FW The history of English law before the time of Edward I 2nd (Cambridge University Cambridge 1968) 467 and Trakman LE “From the medieval Law Merchant to E-Merchant Law” 2003 (53) University of Toronto Law Journal 265-304 265.
128 Trakman 2003 University of Toronto Law Journal 265.
166 border trading.129 Consequently, it was necessary to establish a set of rules that were separate from those national laws. These rules were designed to control merchant activities. Furthermore, the merchant rules were to be applied by special Merchant courts. It is argued that the aforesaid rules grew rapidly and became so dynamic and resilient that they progressed with market improvements.130
Having monitored the successes of the merchant rules, Lex Informatica was developed. It studies the differences between legal rules and the technical architecture of the Internet. It accepts that legal rules and technological rules differ. For instance, the elementary structure for legal regulation is the law.131 However, the basic structure or framework for Lex Informatica is the architectural standard of the Internet, for example, the HTTP and the defaults.132 In addition, it concedes that the foundation of default rules for a law-making process is the state.133 However, the foundation of default rules for Lex Informatica is the ‘technology developer and the social process’ in terms of which the use of technology develops.134
According to Lex Informatica, the technology itself or its applications impose regulations on computer users.135 The nature of or the choices in the design of the technology generally establish the existence of these rules. Therefore, technologies can be regulated through or by relying on their design choices or architecture.136 This is the position because the design or architecture of the technology determines who should access a particular technology and who should not.137 This accessing depends on who holds the required authentication key, for example, username or password.
129 Benson BL “It takes two invisible hands to make a market – Lex Mercatoria (Law Merchant) always emerges to facilitate emerging market activity” 2010 (3) Studies in Emerging Order 100-128 101 and Kerr C “The origin and development of the Law Merchant” 1929 (15) Virginia Law Review 350-364.
130 Mefford A “Lex Informatica – foundations of law on the Internet” 1997 (5) Indiana Journal of Global Legal Studies 211-237 223-224.
131 Reidenberg 1998 Texas Law Review 566-567.
132 Reidenberg 1998 Texas Law Review 566-567.
133 Reidenberg 1998 Texas Law Review 566-567.
134 Reidenberg 1998 Texas Law Review 566-567.
135 Murray AD The regulation of the internet: control in the online environment (Routledge-Cavendish Abington 2007) 8 and Paré DJ Internet governance in transition: who is the master of this domain? (Rowman Littlefield Publishers Maryland 2003) 54.
136 Ong RYC Mobile communication and the protection of children (Leiden University Press Leiden 2010).
137 Paré Internet governance 54.
167 Regulations in accordance with Lex Informatica do not imply the direct regulation or management of cyberspace.138 They signify a balancing exercise which influences a modification or change to a technological architecture.139
(b) The Codes-Based Approach
The codes-based approach is an additional development of Lex Informatica. It acknowledges the existing differences between the real or physical space and cyberspace, and the activities that take place in these respective spaces. The notion of
‘dual presence’ is introduced in order to illustrate these differences. It implies that computer users occupy two spaces at once. They are both offline or are in real physical world and online or in virtual spaces. It also accepts that the manner in which computer users communicate and transact whilst online is opposed to that which applies when they are in physical spaces.140 In real spaces, legal rules regulate and constrain their activities or behaviours. In cyberspace, codes or architecture develop particular regulatory frameworks within which their activities should be controlled.141 The examples of these codes include the software that provides for internet filtering or blocking. Internet filtering technologies prevent or limit the accessing or distribution of particular information.142
Having examined how codes regulate or operate, it is stated that a suitable method of controlling modern technologies is one which recognises the following:
People meet, and talk (communicate), and live in cyberspace in ways not possible in real space. They build and define themselves in cyberspace in ways not possible in real space. And before they get cut
138 Paré Internet governance 54.
139 Paré Internet governance 54.
140 Lessig 1995 The Yale Law Journal 17-46
141 Lessig Code 88. See also, Grimmelmann J “Regulation by software” 2005 (114) The Yale Law Journal 1719-1758 1721.
142 McIntyre TJ and Scott C “Internet filtering – rhetoric, legitimacy, accountability and responsibility” in Brownsword R and Yeung K (eds) Regulating technologies: legal futures, regulatory frames and technological fixes (Hart Publishing Oxford 2008) 109-124 109.
168 apart by regulation, we (regulators) should know something about their
form, and more about their potential.143
Furthermore, the regulatory structures that are based on codes should comprehend the disparities between real physical spaces and automated or cyberspace communications.144 This includes an understanding of how codes regulate as opposed to how legal rules govern.145
In summary, it is revealed that Lex Informatica and the codes-based approach belong to the same codes-based theory. The former follows the successes of Lex Mercatoria.
It particularly draws a clear distinction between the foundation of legal rules and default rules. Consequently, the design or architecture of a technology determines the manner of controlling that technology. The latter accepts that regulating online behaviours will always be different as compared to the control of the activities that occur offline. For example, codes (and not the law) are relevant when regulating online activities.
Therefore, it is essential for regulators to understand these disparities. This should compel them to model their regulatory frameworks using the aforesaid dissimilarities.