Abstract
This chapter deals with the challenges Internet poses to democratic legitimacy. The awareness of the fact that the Internet does not have inherent characteristics paves the way to questioning the legitimacy of the choices behind the definition of the software’s design. The section evolves around the main ideas connected with Lessig’s assertion that code is law and with the possible ways of regulating code. First, I address the problems of democratic deficit related to excluding citizens from participation in the political choices that delimit their space of freedom in online interactions. I then comment on the danger of virtual paternalism, which emerges from the choice of disabling illegal behaviour instead of living to citizens the option of bearing the punishment connected to non-compliance with law. At last, I draw attention to the power of code in hindering or promoting the enforcement of democratic law, and the need for a public debate on regulation of code and transparency.
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Notes
- 1.
See Lessig, L. 2010, op. cit., p. 6, 32.
- 2.
The agents had an incentive to follow the tacit rules, because as much as they might have been able to benefit from isolated deviation, if others took deviating too, the system’s entire structure would be fall apart. It was safer to settle for the second-best result: general compliance. See Sartor, G. 2004. “Virtual Rules and Internet Law”. In Informatik–Wirtschaft–Recht: Regulierung der Wissensgesellshaft. Ed. Taeger, J., and Wiebe, A. Baden-Baden: Nomos, 2004, pp. 7–8.
- 3.
Lessig, L. (2010), op. cit., p. 57.
- 4.
“How to protect liberty when the architectures of control are managed as much by the government as by the private sector? […]. How do we guarantee self-determination when the architectures of control are perpetually determined elsewhere?” Lessig, L. (2010), preface, p. XV.
- 5.
Lessig, L., op. cit., p. 32.
- 6.
And these restrictions are neither physical nor imposed by nature.
- 7.
There comes into focus here a problem with each country’s constitutional and democratic tradition. In the U.S., code is considered private, and the line between private and public matters is rather inflexible and clearly delimited. The Constitution is concerned with “state action” (see Lessig, L. 2010, op. cit., pp. 317–18). This, however, is not the case with other constitutional traditions, such as the Brazilian one. In Brazil, there is already a tendency to apply the fundamental constitutional principles to private relations. Aside from strict labour laws, consumer law, and anti-prejudice law, legal doctrine and jurisprudence in Brazil over the last 20 years have developed a constitutional interpretation according to which the fundamental principles of the constitution radiate across the entirety of the legal order. More generally, this is referred to as the constitutionalization of the civil law (see Barroso, L. R. (org.) (2003). A Nova Interpretação Constitucional: Ponderação, direitos Fundamentais e Relações Privadas. Rio de Janeiro and São Paulo: Renovar; see also Sarmento, D. (2008). Direitos Fundamentais e Relações Privadas. Rio de Janeiro: Lúmen Júris). Therefore, the definition of the online environment as either public or private has conceptual importance, but it would not hamper the application of constitutional principles to code.
- 8.
The community’s understanding of justice and values is usually expressed in its constitution and taken into account when legal rules are formulated and applied. Virtual rules are elaborated by private actors in accordance with their interests and do not take the constitution into account.
- 9.
Lessig, L. (2010), op. cit., p. 5
- 10.
Here I will focus on the legitimacy problems brought about by code regulations, when illegal actions or socially disapproved actions are coded away (Lessig, L. 2010, op. cit., p. 15). The problems that arise when private parties through nondemocratic processes choose what actions are legal or approved have already been discussed in the other sections, in particular in the one immediately preceding.
- 11.
Sartor, G. (2004), op. cit., p. 10.
- 12.
Although this is not my main focus, it is interesting to note that within cyberspace—in virtual environments and games such as Second Life—the power of the code writer is even more sovereign. Avatars are subject to the choices of what is physically possible in that world, and the only means of resistance is to withdraw from that online world, leaving behind all the features and progress garnered by the avatars. See Crawford, S. 2005. “Who’s in Charge of Who I Am: Identity and Law Online”. Benjamin N. Cardozo School of Law / Jacob Burns Institute for Advanced Legal Studies. Working Paper No. 130.
- 13.
The law is used to punish hackers when they manage to crack the system to enable some behaviour that has previously been disabled. Sartor, G. (2004), op. cit., p. 10.
- 14.
An example of this are filters and trusted systems. Filters block access to undesired or illegal information. Trusted systems give access only if rights are respected in the first place. They are a privatized alternative to copyright laws and they make for perfect control, as they make noncompliance impossible. There is a discussion on whether or not the law would ideally have given perfect control to copyright holders. Lessig, L. (2010). op. cit., pp. 180, 184.
- 15.
This poses a moral and legal question, which is: Should we always grant freedom of choice as long as the costs and sanctions are well defined, or should we make some actions physically impossible if we have the means to do so? In some extreme cases drawing broad consensus, such as the prohibition against paedophilia, it may be appropriate to favour the second alternative, but it is important to bear in mind that most cases lie somewhere between the extremes.
- 16.
As was discussed above, there was no way to monitor who the agent was and where and what he or she was doing. Besides, the problem of competing sovereignties and jurisdictions contributed to the difficulty of enforcing the law.
- 17.
- 18.
In drawing attention to this question, Lessig gives some interesting examples: (i) the Federal Communications Commission rule under which voice-over-IP services had to be designed so as to facilitate government wiretapping; (ii) the act requiring producers of digital recording devices to install in their system a chip that implements a code-based system for monitoring any copy made in that machine; and (iii) the requirement that television broadcasters tag their content signalling the level of violence in the film, and that they develop a technology to block content on the basis of the tags. Lessig, L. (2010)., op. cit., pp. 115–16.
- 19.
Post argues that there are several architectures coexisting, and that competition and consumer demands will provide the constraints needed to avoid abuses. He claims that individuals will be able to choose what kind of architecture they want to be subjected to when they decide on which provider, on which website, and with which vendor they want to make transactions. He believes that the architecture of cyberspace will be modelled according to these individual choices, and neither the government nor collective actions are required (See Post, D. G. 2000. “What Larry Doesn’t Get: Code, Law, and Liberty in Cyberspace”. Stanford Law Review 52: 1439–1459). This is true as concerns the choice to take part in online communities such as AOL, but if the restrictions are conditions on access and are imposed by every provider, and if sometimes this is not even clear to the user, then I feel some kind of legitimate regulation would be in order.
- 20.
Lessig, L. (2010), op. cit., p. 136
- 21.
Ibid., 138–53.
References
Barroso, L. R. (org.). 2003. A Nova Interpretação Constitucional: Ponderação, direitos Fundamentais e Relações Privadas. Rio de Janeiro/São Paulo: Renovar; see also.
Crawford, S. 2005. Who’s in charge of who I am: Identity and law online. Benjamin N. Cardozo School of Law/Jacob Burns Institute for Advanced Legal Studies. Working Paper No. 130.
Lessig, L. 2010. CODE 2.0. New York: Soho Books.
Post, D.G. 2000. What Larry doesn’t get: Code, law, and liberty in cyberspace. Stanford Law Review 52: 1439–145.
Sarmento, D. 2008. Direitos Fundamentais e Relações Privadas. Rio de Janeiro: Lúmen Júris.
Sartor, G. 2004. Virtual rules and internet law. In Informatik–Wirtschaft–Recht: Regulierung der Wissensgesellshaft, ed. J. Taeger and A. Wiebe. Baden-Baden: Nomos.
Wu, T. 2003. When code is not law. Virginia Law Review 89: 679. 707–8. Apud Lessig, L.
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Moura Ribeiro, S.S. (2016). Legitimacy. In: Democracy after the Internet - Brazil between Facts, Norms, and Code. Law, Governance and Technology Series, vol 27. Springer, Cham. https://doi.org/10.1007/978-3-319-33593-3_8
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