Wednesday, February 08, 2012

Many national laws are increasingly irrelevant - how will governments adapt?

Facebook decides whether photos of nursing mothers are allowed to be displayed in its site (including in Australia and other nations where such photos are legal).

Google leaves China to avoid complying with its national censorship laws.

Gaming and gambling websites base themselves in jurisdictions where they are legal while attracting most of their customers from nations where such services are regulated or illegal.

Shoppers flock to buy online from countries where prices are cheap and the range is good, incidentally avoiding paying GST or sales taxes on goods and, to compete, retailers, such as Harvey Norman, open online stores based in foreign jurisdictions to avoid charging GST.

People at home use proxies to bypass copyright restrictions on viewing certain content on services like Hulu and establish overseas postal addresses with mail forwarding services to avoid copyright restrictions that only allow certain physical products to be sold in some jurisdictions.

Online pharmacies sell cheap drugs from Canada or Mexico to the US and pornography distributors sell their wares to consenting adults anywhere in the world, regardless of local laws.

Optus in Australia is legally allowed to distribute free coverage of sports events, provided they are received by customers' televisions, delayed 90 seconds and rebroadcast to customer mobile phones - meaning that mobile sports rights have almost become worthless overnight.

Electronic games, books and movies banned in Australia are available for purchase online.

People in countries with restrictive media laws use online proxies and software freely distributed by the US government to learn what is happening in their own country and the world.

Movements even work together globally to circumvent government ordered internet shut-downs or strong censorship in nations, such as Egypt and Burma to allow protesters to organise and citizens to remain informed and inform the world.

Around the world many laws created by governments are under pressure from the growth of the internet.

Laws were originally designed by societies as formal codes to guide, manage or restrict the behaviour of people, conduct of organisations and disposition of assets attached to a particular geographic location.

These 'laws of the land' worked well in a world where the majority of people lived, worked and played in a geographically limited area, where movement between areas was tightly controlled and where assets were easy to recognise and tax but hard to transport.

This remains true in many respects. Minerals, animals and offices are found in geographic locations and can be difficult, if not impossible, to relocate. We largely live and work in geographically defined areas, allowing geographically based laws to be implemented and enforced.

However with the arrival of the internet and mobile technologies certain assets, cultural values and behaviours began to drift beyond the control of any geographic nation.

Any content that can be digitalised or product that can be transacted online may fall outside of national borders, or cross many nations between creation and consumption.

Content that was previously scarce and controlled by national interests, such as news, education and research, can now be made freely available online for anyone anywhere in the world. Products that were previously shipped enmasse by a relatively small number of agents (import/exporters) are now transported by millions of individuals in much smaller quantities, making taxation and border control checkpoints difficult to enforce.

Movies, music, books and electronic games are easy and cheap to replicate, transport and share, despite the wish of copyright owners to lock them in vaults and dole them out to keep prices artificially high, as deBeers has managed diamonds.

Governments and courts are struggling to understand and re-interpret old laws in light of new technologies. Some laws and precedents date back hundreds of year, before the creation of the internet, television, radio, planes, cars or trains - all of the technologies that shape modern life.

Some of these laws and precedents remain influential in legal decisions, square blocks twisted and jammed into round holes to band-aid the legal system in the face of modern technology.

How should government and society reconcile discrepancies between new technologies, modern life and law-makers, law enforcers and laws that have demonstrably not kept up with the pace of change?

Should policy makers ignore reality in favour of legislation shaped to favour aspirational ideals? Should police forces consider all citizens guilty of crime unless they can prove their innocence?

This struggle keep broadening, from copyright, to retail, to gambling and human rights.

To attempt to retain control, governments have filled their streets with cameras to watch for criminal activity, legislated for ISPs retain an online history of website visits for their customers (just in case law enforcement agencies might need it, regardless of privacy risks), maintained secret blacklists of content that their citizens are not entitled to see, or even know what is on the list and secretly develop legislation to protect corporate copyright owners at the expense of citizens.

All of these steps have occurred in liberal western democracies. Autocratic regimes have gone even further to harass and arrest online commentators and shut down parts of the internet.

Many nations appear to have become obsessed with watching their own citizens to catch the slightest infringements at the behest of the fearful, the political and the corporate interests.

I have not yet seen discussions over the relevancy and enforceability of national and state laws in the face of new technology occurring broadly in Australian society or public service in a measured and thoughtful way. There are hall corridors and conferences but little research and mixed knowledge.

The question of how to reconcile the geography of the physical world with the expanding frontiers of limitless and jurisdictionally challenged cyberspace should be integral to many policy conversations. Even seemingly unaffected industries and people are touched, subtly, but profoundly, by modern technologies as their impact continues to ripple outwards.

Just as we require the human rights of citizens and the needs of Australia's region to be considered in legislation, we need to begin considering the workability of geographical laws in the face of modern technology.

In some cases our police and courts will need to work closely with other jurisdictions, even those with diametrically opposed views, in order to detect crimes and detain criminals

In other cases we need to debate how far legislation needs to restrict our own citizens in order to protect corporate non-citizens.

We need to review all of our laws in the face of modern technology to decide which remain workable, cost-effective and practical and determine which require improvement, international agreements or are just plain unenforceable.

And we need to do this regularly as technology keeps moving.

For any geographic state to retain pre-eminent in meeting the needs and wants of its citizens, constraining behaviours that society does not wish propagated and protecting the body, person and interests of individuals, governments need to move to the front-foot regarding modern technology, to stop treating it as the 'other' or a special case.

Governments need to recognise and internalise that our civilisation is technological by its nature. Our culture, values and behaviour are continually shaped by what is possible with technology and what technology has unlocked. 

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