Law’s Role in Development of the Internet


In this post, Smarika Kumar, one of the researchers who received the Social Media Research grant for 2015, introduces her proposed work.

As the internet begins to pervade our lives in increasing ways, the clamour to regulate it has heightened. Be it viral posts on social media urging violence, the easy availability of sexual content on the internet, or sharing of pirated media over peer to peer networks—there is a growing concern about the governance and regulation of the internet from different and sometimes opposing, social groups. .

In this post, I attempt to introduce and outline broadly some of the themes I hope to explore as part of my Sarai fellowship project in light of the increasing attempts to govern the internet. What does such an attempt at governance and regulation really imply? How is the technology of the internet being transformed through such regulations? How does law treat “the technical” of the internet and is there something uniquely authoritative about “technical” knowledge and aspects of the internet which actually goes beyond the reach of law? These are some of the questions I hope to explore in the coming months.

The idea that the internet needs regulation, and that in fact it can be regulated, is relatively new. In the beginning of the 1990s, the internet was thought of as a space which by design, cannot be regulated by the State or law. There was thought to be something inherent about internet as a technology which resisted any attempts at regulation. In this, internet was posited as the ideal anarchist and the more effectively libertarian space which existed beyond the reach of law [1].

 

Internet As a Social Process, Not a Technical Artefact

Things however began to change as the 90s drew to a close. Most notably, the work of Lawrence Lessig posited that the code which underlies the design of the internet can be changed by law, or can be changed by other interest groups. In this manner, internet code can actually become the law by limiting through design of the technology, what may or may not be done on the internet [2]. The technology of internet thus emerged as a site of contestation between various social interests, whose distinct claims about the internet compete to define what the internet is, or what it should be.

Social constructivist theories of technology had even before this, attempted to understand new technology as a process whereby various social groups come together with their disparate ideas about the function, the right way of use, or the values such technology should inhere. Conversely, it involves probing the authority which “the technical” seems to exercise in social formations [3]. My fellowship project at Sarai is an attempt to employ these perspectives on technology to understand negotiations about the internet in legal discussions, documents, and disagreements in India and elsewhere. Broadly, this will entail analysing how law negotiates between the claims of various social groups about what the internet is, by limiting or expanding what it can be used for or not. It will also involve unpacking the aura which the technical constructs around itself even within legal thought, such that the technical body of knowledge comes to exercise more unquestionable influence than other forms of knowledge within law.

The unique point of such an analysis is the treatment of the technology of the internet as a process which is shaped by various social viewpoints as well as the law, rather than imagining the internet as an a priori technical artefact which is formed in vacuum of social interactions in the realm of the “technical.” Popular imaginations of technology tend to treat the technology itself as a black box constituted purely of a “technical” divorced from the social, and whose developmental process is negotiated only in “technical” discussions and disagreements by experts in the technology. And then once there is a consensus amongst the experts, the technology is seen as “closed” or fully formed, whereby larger society starts using it with law into the picture.

In my analysis however, I will draw upon ideas from the tradition of social construction of technology to pose that the “technical” development of the internet hardly closes even after the consensus of technological experts community on the internet has been reached. Law, in its dialogues with different social groups in the imagination of the internet, provides another site to open up and question the meaning of internet as a technology. This happens even after the technical experts community has closed and solidified its own imagination of the technology upon inputs from social factors. Though there is nothing final about such a closure—It is closure which might be reopened and renegotiated later even within the technical community due to changed social circumstances, as is well illustrated by Social Construction of Technology (SCOT) theory [4]. Far from internet being a pre-given artefact whose mystery has to be unravelled and understood by law in order to govern it, law actually contributes to its technical development through various processes.

 

Use of Analogies for the Internet to Streamline Legal Definitions

What exactly are these processes then? One of them is the use of analogies by law to understand what the internet is. There is a prevalent thought that internet cannot be understood through analogies with previous media as it is so radically different in design and functioning from what has been before. Law however constantly looks to imagine the internet in terms of technologies existing prior to it. For example, in Shreya Singhal v. Union of India where the Supreme Court struck down the problematic Section 66A of the Information Technology Act (which criminalised a wide range of speech on the internet on the ill-defined grounds of causing “offence, annoyance, inconvenience, danger, and ill- will” among other grounds) earlier this year, the Court considers a challenge on the ground of Right to Equality under Article 14 of the Constitution, by examining how similar or dissimilar internet is to other media. The argument was that since the grounds under Section 66A are so far-reaching regarding regulation of speech on the internet, compared to other media, it would be unfair discrimination under Article 14 to impose it on the internet. Notably, Article 14 allows for discrimination on grounds of “intelligible differentia,” and “rational nexus”, i.e. difference in application of laws for two different things may be allowed if differences between them to classify them differently can be adequately established, and if the application of different law has a rational link to such differences. This is based on the principle that “Unequals cannot be treated as equals.” In the background of this, the Court concluded that internet indeed differs from other media existing prior to it, by holding:

“However, when we come to discrimination under Article 14, we are unable to agree with counsel for the petitioners that there is no intelligible differentia between the medium of print, broadcast and real live speech as opposed to speech on the internet. The intelligible differentia is clear – the internet gives any individual a platform which requires very little or no payment through which to air his views. The learned Additional Solicitor General has correctly said that something posted on a site or website travels like lightning and can reach millions of persons all over the world.”
(para 98)

These two points—that the cost of communication on the internet is extremely low, and that internet has a fast and global reach, are the bases on which the Court imagines the internet differently from previously existing media, to hold that there is a rationale for governing internet in a different way: “We make it clear that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation.” (para 98)

While there is a McLuhanian ring to this judicial reasoning, my interest lies in examining how such analogies assist in creating a particular imagination of the internet through an implicit identification of the essence of the internet [5]. In the Court’s understanding here, the functionalities of the internet that it is cheap, and has a speedy and global reach become vital to the judgment’s imagination of what the internet is. Whatever form or direction of development the internet might take, in eyes of the judgment, these two features seem to define what it is. Though this is the understanding in just one case, with the use of judgments as precedent can easily replicate this understanding in subsequent cases, thus becoming prevalent in the entire legal thought than just a one-off example. In a way the essence of internet as a technology in legal imagination can then become its wide and fast reach—eliminate these features, and it is not the internet anymore. In this manner, the use of analogies for the internet is used to streamline a definition for what that technology is. Such definition may then be codified into legislative and policy documents to further propagate the particular imagination of the internet underlying the definitional formulation. I intend to explore this process further in my project.

 

Classification As an Exercise in Legal Imagination of the Internet

Another process through which the imagination of the internet might be negotiated in law is the use of classification tools. The use of classification has the logic of analogies underlying it. One classifies those things together which are similar in certain well-defined criteria—in other words, one has to see likeness or analogy in a new technology with older technologies in order to classify them similarly. Identification of criteria which will guide such classification exercise then becomes crucial to deciding how a new technology is to be classified, and therefore how a new technology is to be imagined.

Another process through which the imagination of the internet might be negotiated in law is the use of classification tools. The use of classification has the logic of analogies underlying it. One classifies those things together which are similar in certain well-defined criteria—in other words, one has to see likeness or analogy in a new technology with older technologies in order to classify them similarly. Identification of criteria which will guide such classification exercise then becomes crucial to deciding how a new technology is to be classified, and therefore how a new technology is to be imagined.

Aspects of the net neutrality debate in India offers a good example of this process. In the net-neutrality-discussion-relevant TRAI Consultation Paper on Regulatory Framework for Over-the-Top (OTT) Services released on the heels of the Shreya Singhal judgment, it is noteworthy that 7 of the 20 questions posed relate fairly directly to an issue of classification concerning OTT applications or OTT communication services (See Qs.2,4,5,8,14,15,17). One major contention reflected in these questions and around which the public and experts debate evolved as well, was that Telecom Service Providers (TSPs) and OTT communication service providers of VOIP, internet telephony and instant messaging should be subject to same regulations since they provide the same services (See for example, Submission 3 of COAI Comments on the Consultation Paper). This meant classifying TSP services and OTT communication services as the same service. Contrary to this, another view holds that TSP services and OTT communication services are not the same as they employ inherently different technologies for delivery: while TSP services use circuit switching, OTT services use packet switching. Hence the opposing assertion that they cannot be classified as providers of same services (See for example, “Same Service Same Rules” section in Medianama Counter Comments on the Consultation Paper).

There is a crucial difference in criteria for classification used in these two opposing views: The first one employs the nature of the end use of the service by consumer as the basis for classification. The second one employs the method used for the delivery of said service to end user as the criterion for classification. Consequently one begins to see the difference in the imaginations of the internet propagated by each view: For the first one, the essential idea of what the internet is, is rooted in the end use one derives from it. For the second one, the essence of what the internet is, is rooted in the means employed to deliver the end use. For the first view then, it is not an OTT communication service if the end use derived from it changes; for the second view, it is not an OTT communication service if the means to deliver it changes. The essence of the OTT communication service, and by extension of the internet, in each of these approaches therefore is entirely different. Different classificatory and regulatory consequences thus are seen to arise from inherently different imaginations of what the internet is. Each imagination is an indicator of what will be considered dispensable in the development of the technology of internet—that which is not part of the “essence” of the corresponding imagination. Even if such corresponding dispensable elements are eliminated, for each of the two imaginations respectively, the technology can still be dubbed as “internet.” My hope is to analyse legal classification as another critical process which while constructing “the technical” of the internet in social terms, also serves to create the authority of such “technical core” of the internet in law.

 

Charting the Future of Internet Technology Through the Assertion of Jurisdiction

Classification in law has an additional impact on another issue: That of jurisdiction. Since different authorities are given jurisdiction over different subject areas that are consolidated through legal classification, assertion of jurisdiction by an authority over a particular technology becomes an indicator of just how that technology is being imagined.

This comes into focus when TRAI asserts its jurisdiction over OTT services through the release of the Consultation Paper discussed above. In the release there is an assumption that TRAI actually has the authority to look into and recommend policy for the governance of OTT services. However there is nothing obvious or natural about this assumption: The assumption is very much a product of certain kind of assumed classification, and therefore of a certain kind of imagination of OTT services and the internet. Only if one imagines OTT and TSP services as same services on the basis of certain criteria (as discussed above), one can say that TRAI’s assertion of jurisdiction over OTTs is “obvious.” But as soon as one takes the course of the second view, whereby OTT and TSP services are not seen as “same service,” and therefore cannot be classified together, one begins to question the basis of TRAI’s jurisdictional authority over OTTs which it is implicitly proclaiming through the release of a consultation paper on their regulation that states, “The objective of this Consultation Paper (CP) is to analyse the implications of the growth of OTTs and consider whether or not changes are required in the current regulatory framework”(para 9). One deduces that the end-use criterion, and not the method-of-delivery criterion for classification of the internet is employed when the Consultation Paper states, “In fact, young users find it difficult to distinguish among these three networks; from their perspective, all that matters is connectivity. They visualize these not as a layered and interconnected series of discreet networks, but as an organic whole” (para 2). Assertion or questioning of jurisdiction thus becomes another mechanism through which different imaginations of the internet are negotiated in law. I hope to look into such processes of assertion of jurisdiction over the internet and what they might imply for the understandings and authority of the technology of the internet in law, in the coming months.
Notes

[1]. John Perry Barlow, “A Declaration of the Independence of Cyberspace”, 1996. URL: https://projects.eff.org/~barlow/Declaration-Final.html

[2]. Lawrence Lessig. 2006. Code: Version 2.0. Available at: http://codev2.cc/

[3]. Wiebe E Bijker, Thomas P Hughes, Trevor Pinch (Eds.). 2012. The Social Construction of Technological Systems – New Directions in the Sociology and History of Technology. Cambridge, Massachusetts: MIT Press.

[4]. Wiebe E. Bijker. 1995. Of bicycles, bakelites, and bulbs: toward a theory of sociotechnical change. Cambridge, Massachusetts: MIT Press.

[5] Marshall McLuhan. 1964. Understanding Media: The Extensions of Man. New York : McGraw-Hill.

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Published on: June 3, 2015


1 Comment

  • A great read Smarika! My only suggestion is to probably look a little more at content regulation. The law’s interest in the internet is, as you mentioned at the outset, one of regulation. Perhaps the nature of the content on the internet (like the examples you cited) will throw some light on the manner and extent of regulation by the law.

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