Cyber-Libertarianism, Cyber-Paternalism, and Network Communitarianism

Introduction

The characteristics of the internet form grave challenges to governance, regulation in this space is another challenge. To begin with, cyberspace has caused a dramatic increase in the speed of communications between institutions and individuals. SMS and Emails are received and sent immediately, media such as videos and photographs are sent faster. In this respect, Perry Barlow argues that Cyberspace is an area where no state can claim jurisdiction and described cyberspace as a global electronic social site where governments did not have norm rules or methods of enforcement because cyberspace has no territorial boundaries. Moreover, several theories about the regulation of cyberspace have been proposed at that time, it is also accepted that regulate cyberspace is a complex idea due to the multiple rules and overlapping systems in the space, where each approach, claims the effectiveness of internet regulation. Cyberspace or the internet is a special domain due to its nature in terms of the architecture, structure, geography, and information offered, this nature makes the ideas of regulating cyberspace a difficult and controversial topic to discuss. This essay will start first by discuss the difficulties and background of the regulatory approaches. Second, will analyze the three school of thought Cyber-Libertarianism and Cyber-Paternalist and Network Communitarianism theory. The rest of the essay will discuss the issues on social media and how can be regulated.

The need for legal regulation and difficulties have been found

Due to the important role of cyberspace in the world, questions about the “reliability" of cyberspace are increased. Besides, Scholars are concerned to what extend cyberspace can be regulated regarding its geography and unique nature. There is little agreement on the state ability to regulate cyberspace, even though the efforts of states understanding the nature of cyberspace and working on how to regulate, it noticed that states will not be able to regulate due to the characteristics of the space which is the technology of medium, the geographical distribution of the users and the nature of its content. Nevertheless, scholars argue that cyberspace needs a regulation whether state regulation or a hybrid model of regulation because the individual life will be influenced by information technology which in some circumstances need legal protection especially in a commercial and non-commercial activity that might need protection. To illustrate, unreliability will harm the commerce to flourish, where there is no secure transaction because of the architecture, facilitate illegal software copies and music, hide the interference source. However, due to the importance of regulating cyberspace to achieve commercial prosperity and protect users from harm governments around the world have enacted legislation to regulate some aspects such as data protection but the problem arises because of geography, and for this reason, scholars have proposed that cyberspace needs an international regulation. However, the nature of the internet and its content makes it difficult to understand thus difficult to regulate by states, and this approach based on the understanding of cyberspace, it is, therefore, clear that there is an urgent need for an international response in this matter. To illustrate, cyberspace threatens is increase and threats to security and justice required regulation through international law, such treaties can be done under the United Nation or any international mechanism. On the other hand, disadvantages have been found, several nations around the world such as the United States if there is no signature on the law or an agreement the activation of the law will be impossible since international law is inferior to domestic law. Moreover, despite that the internet has been issued a decade ago there is no international agreement on regulation while there is a law to regulate the telegraph which has been executed 12 years ago, this indicates the complexity of making an international law to regulate cyberspace. Generally speaking, States in contrast to the physical world cannot exercise their capabilities and enforce laws due to that cyberspace is non-regional.

Background of cyberspace “reliability” approaches

Current theories on the regulation of cyberspace are focused on how to regulate cyberspace and who can regulate it Instead of discussing whether It is possible to regulate. States cannot sufficiently control cyberspace by regulation and law, even when it is up to date with evolution in technology, the effectiveness of the law will be restricted. Other regulatory means are suggested such as "code and system design, self-regulation by the private sector and co-regulation via public and private cooperation have been proposed as alternatives with which to govern cyberspace" However, In the 1980s, demands joint use and development of the communication networks, which reinforced the faith of the technical community in a democratic and universal network . in the 1990s, debates about the regulation of cyberspace have been started with the freedom of expression right in cyberspace. The movement of cyberlaw reflects the starting point of the regulation of cyberspace debate . Many theories have been discussed, some of these believed that cyberspace should be formed as an independent environment, not regulate by states. The term "cyberspace" for the "global electronic social space." was used by John Perry Barlow as the first scholar who used this term. At that time, in 1996, he announced the "Internet Declaration of Independence“, this provides that “Governments of the Industrial World […] have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear […] Cyberspace does not lie within your borders”. However, Two theoretical approaches have been developed to regulate cyberspace, Cyber-libertarianism, and Cyber-paternalism.

Cyber-libertarianism

One of the main approaches of cyberspace regulation comes from the classical cyber-libertarianism perspective that was proposed by Johnson and Post. This approach argues that the nature of cyberspace where there are no territorial boundaries makes it difficult to regulate by the traditional state Sovereignties, rather, it argues that cyberspace can be regulated by norms defined by the digital community because cyberspace is unique and different from the real world. The cyber-libertarianism perspective suggests that cyberspace can be self-governed, which means on the internet, the government is not required to set rules to regulate cyberspace because the internet can formulate rules of its governance and regulation. In other words, “Social self-regulation refers to a user's ability to resist the automatic stimuli to use Social Network Services generated from social situations (or actions) in both online and offline environments.”

Under the perspective of Parry Barlow's internet should be out of the framework of government control is a view that derives from cyber-libertarianism. Moreover, it has been noted that the viewpoint of self-governance shows that "bottom-up private ordering" of cyberspace is preferable to regulation by a bureaucratic state. However, the main argument for this viewpoint is that this approach would lead to the priority of individual choice and local norms over the regulatory norms made by the state. To illustrate, Cyber-libertarianism allows people from different cultures and countries to know each other without state surveillance which then will reflect positively on economic, political, and trade. However, the cyber world does not provide for surveillance in this way, people who infringe social customs can use technology as a mean to act freely against social and human norms. Nowadays, cyberspace is significant for specific self-regulatory approaches, which have low international support and funding.

Cyber-paternalist

Cyber-paternalism is the school of thought which believes that cyberspace is not fortified from real-world regulators. This approach has two perspectives that opposing the cyber-libertarianism approach which is: cyber-realism and techno-determinism. To illustrate, the cyber-realism approach suggests that cyberspace might be regulate based on the traditional perspective of law and jurisdiction. Moreover, techno-determinism, claims that the regulation of cyberspace is not impossible due to the nature of the internet, instead, the difficulties are based on the method of conforming enforcement tools with the classical regulatory modalities. Thus, from the perspective of cyber-paternalist, the internet can be regulated by state regulation. In addition, from the Lawrence Lessig perspective, traditional regulatory performance needs re-reading concerning the characteristics of the internet such as its architecture and how this relates and responds to the markets, law, and norms. Moreover, the Internet architecture is considered to play an important role in asserting rights, so that means, it is possible to regulate the internet even if cyberspace has a unique character. It appears that Cyber-libertarianism and cyber-paternalism approaches offer contrasting perspectives on how cyberspace can or cannot be regulated. However, both agree that cyberspace is important in the contemporary world and has a unique nature. However, another theory about cyberspace regulation by Andrew Murray, as cyberspace has geography, structure, and space for communication and discourse, develop a regulatory network based on a hybrid model is necessary and effective rather than direct legal-regulatory controls by the state. In another word, this view argues that cyberspace can be regulated by a hybrid system that allows states to regulate the space along with other actors. Moreover, this view based on the ability to use the internet architecture to create a hybrid model of regulation, many scholars have been emphasized the effectiveness of this system. However, theories such as Network Communitarianism, Lessig’s ‘Code’, and Thaler and Sunstein's 'nudge', platforms, and intermediaries are working on enhancing smart technologies to regulate the online experience.

Lessig’s ‘code’ thesis

In 2006, Lessig claims that the effectiveness of regulating cyberspace behavior will be through four restrictions: "the law, social norms, the market, and architecture". The law identifies behaviors that lead to legal punishment. Social norms "constrain through the stigma that community imposes" a high financial cost which is called market forces is controlled people's behavior. The architecture which means the affordability of technology also restricts behavior. “Each constraint imposes a different kind of cost on the [user] for engaging in [a] behavior”. As a result, each of these elements is a "distinct modality of regulation" such elements can oppose or support other architecture. For example, they could enhance or demolish the law. As a result, the four restrictions have discussed can be the government tools to tamper with cyberspace behaviors, "Self-executing" is discrimination architecture from Law, Market, and Norms, which means "people may be involved in constructing a certain architecture but in the end, it constrains directly and immediately without the mediation of another human being" in similar to the physical world the regulation is based on the interaction functionality of these four constraints.

What do architectures describe? It is described as a "code" which is the program used in cyberspace, which can control and restrict the users' activities and a tool of political and social control. in another word, architecture will allow tradition to play a role in the regulation, there will be good decisions about the better mean to build out the internet architecture contains communities values, integrating these values with law. In other words, regulate cyberspace based on "software developer" and "code writer" due to the effectiveness of this instrument in regulating without ambiguities and loopholes.

Network Communitarianism theory

“Communitarianism is a social philosophy which maintains that societal formulations of the good are both justified in normative terms and supported by social science findings. Communitarianism is often contrasted with classical liberalism, a philosophical position that holds that each individual should formulate the good autonomously.”

What is Network Communitarianism? It is a concept was developed in (2006) by Andrew Murray, this concept was known as a school of thought about regulating the internet. This school of thought is based on Social system theory (Luhmann, 1986, 1995) and Actor-Network theory (Callon, 1999; Hetherington and Law, 2000; Latour,2005; Law, 1992). To illustrate, the theory has been developed as a result of the debate between cyber-libertarianism and cyber-paternalism where one advocate that cyberspace has to be liberal with no authority upon users, while the other, advocate that cyberspace has to be over-protective, Network Communitarianism developed to build a bridge between the main two schools because it seems that enact laws in cyberspace are ineffective. Moreover, Andrew Murray's Network Communitarianism theory suggests that such a system enacted in cyberspace can work effectively to regulate cyberspace through involvement in space-specific practice. To illustrate, It has been noticed that how the operation of the group of networks works as actors in the network and as a closed or Luhmannian social system. It has been clarified that such communications among these groups of networks are an effective way to understand their participation and create criteria that assist or influence the way of regulation. Thus, the networks communitarianism can present answers when the social tool and traditional legal cannot because when the systems became actor it then be able to affect the changes in the space and create an environment that allows passing any top-down regulatory effort not only participate. Moreover, code has a communicative and social function, code is not only an architecture tool or design and this is the substance of the third school of thought. The answer on how to regulate the online environment in the network communitarian is symbiotic regulation, the difference between the traditional regulation tools and symbiotic regulation is that symbiotic uses the natural direction of communities to set an equality regulation. Moreover, the symbiotic regulation begins with the start point of the current regulatory and then determines the harm point they wish to regulate then exam which type of regulation can suit the community.

Can Social Media be regulated?

Social media is the revolution of the current era, individuals can share their thoughts and photos through platforms such as Twitter, Instagram, Facebook, Snap Chat, these platforms can affect economic, political, and social behavior. Social Media is valuable to cyberspace as it is the point of connection between individuals and their governments, people can participate in some public issues. Furthermore, Social Media has promoted economics by job creation. Alongside the advantages of social media, the Platforms have also brought some negative impact on societies, users data based on profiles information are targeted to shows commercial and political advertisements, individuals who have bad behaviors find social media is a fertile ground to spread fake news and misinformation and hate speech. For example, at the beginning of the COVID-19 pandemic, we have seen much misinformation about the symptoms of the disease, and it is happening now with misinformation about the vaccines. Recently, several issues have cast a shadow over the social media industry such as misinformation and fake news, suppression of political activism by anti-democratic regimes, data privacy violation, scandals related to elections.

Many countries around the world are discussing a proposal of social media regulation, the proposal is required for "social networks" to disclose the main functions and algorithms details to examine the technology by researchers, it also proposed "adding friction" to prohibit the spread of misinformation on the internet. Moreover, there was another discussion claiming that governments should be a regulatory oversight on companies at the development phase to avoid insert some features which may cause these symptoms because countries are focus on the symptoms ignoring the basic reason. In contrast, allowing governments to develop social media policies will be unfair for those people who need to express themselves and social media is the only way for them, also, this way will contrast with democracy. To illustrate, the Public domain is the space for freedom of expression, allowing and supporting this value emphasis that the institutional arrangements work well, and by supporting this value we can understand that. To illustrate, Political democracy value needs freedom of speech to create public opinion, to help the public to be aware and participate in the issues of public concern, also it helps to ensure that nations are responding to the development in public opinion. It appears, social media play an important role in civil society life and seems to be a tool for governments to hear public opinion.

In 2020, In the case of the United States elections, where Twitter played a key role at that time, social media has been criticized due to their policy, the companies argued that social media policies are tough to implement and also tough to distinguish between hate and irony speech, some companies acknowledge that governments should be responsible for the formation the internet policy. Furthermore, social media as mentioned above is a public domain, and leave the regulation for governments is an action against citizens when it comes to those countries that do not believe in freedom of cyber speech, as the policy of the network companies should be committed to the basic human rights which is allow people to free speech with respect others right. The policy of these platforms is kept up with the country's regulations wherever they work in. For example, using Twitter, Instagram, or Facebook in China, Saudi Arabia or Russia is not the same when used in countries such as the United Kingdom or the United States, as in the first three states there is some restriction on social media using while the other is more flexible especially when it comes to freedom of expression required to not conflict with morality and public policy. It appears that in the field of social media countries are worried about speech even if the standard is different from one country to another.

The case against the American giant Yahoo against international anti-racism and the anti-Jewish coalition is one of the most famous cases showing the difference in the application of freedom of online speech regulation between countries and indicates these difficulties. Mark Knoble, an activist French against neo-Nazism, discovered that Yahoo's auction portal was selling neo-Nazi content. Through the aforementioned non-governmental organization, Knobel filed a case against the company based in California (Yahoo), for violating French law prohibiting the transportation of Nazi goods. "French courts intend to make decisions in areas beyond their control", was the response about the case from Jerry Yang, co-founder. Despite this reaction, the case procedures have continued, and the court focused on claims of technical impossibility to distinguish between what is offered to Yahoo customers in France and what is offered to other customers. The prosecution defended the sovereignty of the French state to defend itself from the sale of illegal Nazi goods from the United States and to question the reason for the existence of an exceptional regime for Yahoo and cyberspace. The court ruled that Yahoo violated French law and ordered the company to take all necessary measures to prevent French citizens' access to such contents. Yahoo's claim to fulfill the court order was overridden, based on the privacy of the Internet architecture.

The regulation of online speech in Social Media is the most controversial part of cyberspace. To illustrate, Democratic countries emphasized the importance of expression, suppression of human freedom of expression in violation of the sanctity of individual choice, although democratic countries believe in individual's freedom of speech, the US and Europe have some restrictions on some kind of speech such as obscene words, violence, and incitement. For example, users around the world have been arrested due to their behavior on social media. For example, the Canadian authority arrested someone because of the harassment of another one. In the United Kingdom, a teenager was arrested due to a hideous comment about a murdered girl on Facebook. In Turkey, a huge number of protestors were arrested for inciting against the government on Twitter. Generally speaking, although countries and societies ignore bad behaviors and try to restrict anonymity on the internet is the most challenging face of governments. Moreover, social media bots usually work to deface the market environment by spreading ideas by involving in hashtag flooding.

The platform architecture, social norms, and facts, users' behavior caused a controversiality to create a law to regulate this space. Despite the regulation is required, the law should avoid focusing on online speech and suppressing it, instead, the law should focus on restructuring the platform architecture and the systemic adjustment. To illustrate, rules that shape the platforms and the means of spreading speech, are factors that push speakers to use social media platform where disclosure thrives, whether social media can be compared to the public utilities; newspaper editors, broadcasters, company towns, or government institutions, and regulate social media based on these, "is important only to the extent that one of these models adequately aligns the managerial interests of the platform with the gubernatorial interests of the state. To the extent that these interests are already aligned", the self-regulation model should be overcome. Where they diverge, a case can be made for intervention. Recently, several attempts to regulate privacy on social media have been patchwork and confusing, social media need to active the self-regulation approach to avoid user anxiety and congressional legislation, instead of attempts to try to enact centuries of tradition in privacy, congrues should provide a range of criteria for these company for their terms of use agreements, contain strict notice requirement, and require courts to adopt and use this notice and requirement strictly, “leaving the extent of ownership of personal information to contractual bargaining between the network and its users” On the other hand, from a copyrights scholar's perspective, where users in social media can create, disseminate and modify content where copyright infringement is contained. Create an approach that allows the copyright system to participate in regulating the social media content by inserting the notice and directives of the way of using content to aware users of the risks of copyright infringement, in another word, copyrights might associate to regulate the content-generative behaviors.

Conclusion

The characteristic of cyberspace is unique. This space has no territory boundaries which made the ‘regulability' of cyberspace difficult. There is little agreement on regulating cyberspace. The nature of cyberspace where there is no specific regulation will influence individual life so modern life needs protection to save people's life, especially in the commercial and non-commercial fields. Many perspectives around the effectiveness of enacting the international law and appear that it is difficult because there are no territory boundaries. Two schools of regulation have been developed which are cyber-libertarianism and cyber-paternalist and several theories have been suggested such as code, system design, and self-regulation. Johnson and Post argued under cyber-libertarianism the cyberspace has no boundaries which that means governments cannot enact their jurisdiction, some disadvantages have been found in this approach, it appears that leaving cyberspace without states rules will allow people to infringe public policy and norms to practice their behavior without surveillance which that will harm societies. However, cyber-paternalist emphasized the importance of enact the traditional rule and the ability to regulate cyberspace by states tool even though the nature of this site. Moreover, two approaches come under the cyberpaternalist perspective which is cyber-realism, where claims that regulate the internet by states is not impossible and cyber-determinism emphasized the ability to regulate by state. However, Andrew Murray claims that cyberspace can be regulated by the hybrid model which means the state approach can be a hybrid system with internet architecture. Another theory such as Lessig's code and Thaler Sunsteins’s 'nudge' platform which means enhancing smart technology to regulate. On the other hand, regulation of social media platforms such as Facebook, Twitter, Snapchat, and Instagram became a controversial topic to discuss, due to the key role of these platforms and how influence our life whether directly or indirectly. Many people around the world are arrested due to their behaviors on social media whether sexuality, racism, or violence, governments around the world are discussing the ability to regulate these platforms. Regarding the last issue in the American election, Twitter claims that government should be responsible on regulate social media by enacting their rules. In contrast, another theory suggested that the regulation of social media platforms should be based on self-regulation which appears that this approach can be used to avoid user anxiety. To illustrate, congress can provide a set of requirements to the social media platforms to use it in their terms and agreement. However, another, approach has been suggested in order to protect content that by copyright.

Dig deeper into WhatsApp's Privacy Dilemma with our selection of articles.

References

Book

Panayiota tsatsou, internet studies (routledge 2016).

Schiff berman p, law and society approaches to cyberspace

Berman PS, Law and Society approach to cyberspace (Ashgate Publishing 2007).

Boyle J, ‘Foucalt in Cyberspace: Surveillance, Sovereignty and Hardwired Sensors’ (1997) 66 U. Cin. L. Rev. 177.

Kettemann MC, The Normative Order of the Internet: A Theory of Rule and Regulation Online (Oxford University Press 2020).

Murray A, The Regulation of Cyberspace: Control in the online environment (Routledge 2007).

Murray A, Information Technology Law: the law and society (Oxford University Press 2013).

Reed C, Law: Text and Materials (Cambridge University Press 2004)

Reed C and A Murray, Rethinking the Jurisprudence of Cyberspace (Edward Elgar 2018).

Reidenberg JR, 'Lex Informatics: The Formation of Information Policy Rules Through Technology' (1998) 76 (3) Texas Law Review 553.

Journal

Lessig L, 'Law Regulating Code Regulating Law' (2003) 35 Harvard Library

Osatuyi B, and Turel O, 'Tug Of War Between Social Self-Regulation And Habit: Explaining The Experience Of Momentary Social Media Addiction Symptoms' (2018) 85 Computers in Human Behavior

Johnson DR and D Post, ‘Law and borders: the rise of law in cyberspace’ (1996) 48(5) Stanford Law Review 1367.

Lessig L, ‘The Law of the Horse: What Cyber Law Might Teach’ (1999) 113(501) Harvard Law Review 506

Netanel NW, ‘Cyberspace Self-Governance: A Skeptical View from Liberal Democratic Theory’ (2000) 88 Calif L. Rev. 395.

Reed C, ‘The Law of Unintended Consequences – Embedded Business Models in IT Regulation’ (2007) JILT2.

Osatuyi B, and Turel O, 'Tug Of War Between Social Self-Regulation And Habit: Explaining The Experience Of Momentary Social Media Addiction Symptoms' (2018) 85 Computers in Human Behavior

Frank Fagan, 'Systemic Social Media Regulation' (2017-2018) 16 Duke L &Tech Rev 393

Jiow HJ, “Cyber Crime in Singapore: An Analysis of Regulation Based on Lessig’s Four Modalities of Constraint” 7 International Journal of Cyber Criminology

Rochefort A, ‘Regulating Social Media Platform: A Comparative Policy Analysis’ [2020] Taylor & Francis Electronic Journal

Harawa D, 'Social Media Thoughtcrimes' [2019] SSRN Electronic Journal

List R, Anheier H, and Toepler S, International Encyclopedia Of Civil Society (Springer International Publishing 2010)

Santos L, 'Cyberspace Regulation: Cesuras And Traditionalists' (2015) 6 e-journal of International Relations

Spinello R, 'Code And Moral Values In Cyberspace' (2001) 3 Ethics and Information Technology

Conference papers

Schjolberg S, An International Criminal Court or Tribunal for Cyberspace. A paper for the EastWest Institute (EWI) Cybercrime Legal Legal Working Group (EastWest Institute 2011).

Websites

Hutchinson S, 'Social Media Plays Major Role In Turkey Protests' (BBC News, 2013) accessed 1 April 2021

Balkin J, 'How To Regulate (And Not Regulate) Social Media' (Knightcolumbia.org, 2021) accessed 16 March 2021

Barlow JP, ‘Declaration of Independence of Cyberspace’ (1996) accessed

Khan I, 'How Can States Effectively Regulate Social Media Platforms?'

'A Declaration Of The Independence Of Cyberspace' (Electronic Frontier Foundation, 2021) accessed 15 April 2021

Tan C, Regulating Content On Social Media Copyright, Terms Of Service And Technological Features

Corinne Tan, Regulating Content On Social Media Copyright, Terms Of Service And Technological Features.

Robert Terenzi Jr, 'Friending Privacy: Toward Self-Regulation of Second Generation Social Networks' (2010) 20 Fordham Intell Prop Media & Ent LJ 1049

Ashley Fox, 'Automated Political Speech: Regulating Social Media Bots in the Political Sphere' (2020) 18 First Amend L Rev 114

Siripurapu A, and Merrow W, 'How Countries Regulate Online Speech' (Council on Foreign Relations, 2021) accessed 16 April 2021

Fox C, 'Social Media: How Might It Be Regulated?' (BBC News, 2021) accessed 16 April 2021

“Cyber-Regulatory Theories: Between Retrospection and Ideologies” (UNIO EU LAW JOURNALJune 3, 2019) accessed March 15, 2021

'Network Communitarianism As A Tool For Stakeholder Engagement In Places' (E-space.mmu.ac.uk) accessed 17 April 2021

'April Jones Murder: Teenager Jailed Over Offensive Facebook Posts' (the Guardian, 2012) accessed 7 March 2021

Magazine

Lessig L, 'Code Is Law' Harvard Magazine accessed 4 March 2021