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Lessigs article The Law of the Horse: What Cyber Law Might Teach is a response to Judge Easterbrooks argument that developing a specific cyber law would create greater confusion, as opposed to clarification. This review will identify that Lessigs argument that there should be a regulation is appropriate and supported by the modern day issues surrounding cyber culture. Thus, the paper will ask the following questions:
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Should there be regulation of the internet?
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What form should this regulation take?
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Will Lessings model be able to deal with the modern problems of cyber culture?
Lessig (1999) argues that creation of a specific cyber law can bring clarity, if appropriately developed (p. 502). The main argument of Easterbrook is that:
The best way to learn the law applicable to specialized endeavors& is to study general rules (Easterbrook, 1996, p. 207).
Lessig confirms that Easterbrook has a point that there should not be an overly rigid approach to regulating the internet and cyberspace. However, it is also expressed that this should not result in a situation where there is no specialized law at all. Rather, Lessig supports a mixture of appropriate regulation and self-governance of cyberspace.
The argument of Lessig has one key point, which is sometimes missed. This point is that creating a law that governs cyberspace does not only deal with technology (Lessig, 1999, p. 502). Rather, the law is concerned with the connection between society and cyberspace (Lessig, 1999, p. 502). This point of connection should not be centered upon a system that is based on just the technological elements. However, the focus should be placed on the culture and social elements that arise in this new realm.
Lessigs article is ahead of its time because the issue of cyber culture has been realized in the Facebook era, which is clearly a problem. The role of social networking has brought the number of difficulties, which includes the bullying over Twitter. The implication is that no regulation at all will cause anarchy. Thus, it is important to ensure there is a proper examination of the different aspects that play a significant role. The rationale for this is to ensure that there are sufficient protections in place, in order to deal with these social issues.
As Lessig (1999) argues, the intersection between cyber-culture and terrestrial law is the primary problem. This is because:
The threats to values implicit in the law threats raised by changes in the architecture of code are just particular examples of a more general point: that more than law alone enables legal values, and law alone cannot guarantee them. If our objective is a world constituted by these values, then it is as much these other regulators code, but also norms and the market that must be addressed. Cyberspace makes plain not just how this interaction takes place, but also the urgency of understanding how to affect it (Lessig, 1996, p. 546).
Lessig (1999) recognizes that the architecture of the technology cements the problems because the law is not capable of developing a framework that is based upon the pre-existing terrestrial model. Thus, the issues that arise are fundamentally different. The implication is that there has to be a modicum of specialization, albeit there should not be a rigid set of rules that are not capable of dealing with evolutionary nature of cyberspace (Lessig, 1999, p. 46). This is why Lessig prefers a mixture of terrestrial legal principles, specialized laws and self-regulation.
The benefit of this model is that it is going past the technological to the cultural and social. In addition, it balances the arguments of cyber paternalism (strict regulation) and cyber libertarianism (no regulation). However, by taking the middle ground, Lessig argues that there needs to be appropriate regulation. The appropriate regulation is necessary because it is based on understanding that cyberspace has the potential of creating a parallel culture (Lessig, 1999, p. 47).
The role of internet providers and self-regulation is also equally important in this framework because such companies have the knowhow and capacity to monitor abuses in cyberspace. This can be seen in the modern era with internet providers being compelled to prevent abuse of copyright law when there is sufficient control over the website (Kleinschmidt, 2010). The same approach can be applied to the growing problems associated with the abuse of individuals over social networking sites, such as slurs and offensive social networking measures. Thus, Lessigs argument that there needs to be appropriate regulation is clear because modern issues with cyber culture illustrate that there needs to be adequate sanctions and protections in place to prevent such harms.
In conclusion, Lessigs argument should provide the basis for many of the social harms that are present in the current approaches to internet regulation. This can be done through the development of appropriate regulation, which interacts with terrestrial laws. The second element is that there must be a role for the internet providers to aid in the process, which can be undertaken through self-regulation. The aim of this approach is to develop a substantive interaction between the law, cyber culture and technology.
References
Easterbrook, FH (1996). Cyberspace and the Law of the Horse. University of Chicago Legal Forum 207, 1-4. Web.
Kleinschmidt, B (2010). An International Comparison of ISPs Liabilities for Unlawful Third Party Content. International Journal of Information Technology 18(4): 332-355.
Lessig, L. (1999). The Law of the Horse: What Cyber Law Might Teach. Harvard Law Review 113(1): 501-546. Web.
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