Regulating cyberspace

The internet — an effective means of social interaction that inevitably altered human life — is the new normal. Its utility to humankind could not be overemphasized as much as its inherent peril could not be underestimated. Cyberspace serves as a huge social medium, a limitless playground, a vast marketplace for businesses, and even a warfare arena for tech-savvy countries including terrorists.

Cyberspace spans worldwide, but it has no formal framework. It is a system of multisystems; a network of multinetworks. Yet, cyberspace has no metasystem that controls it. It has no definite metes and bounds except the capacity of the hardware used for access. The lack of formal framework makes cyberspace nobody’s domain. No single individual, entity, or government owns or controls cyberspace. In property law, cyberspace may be considered res nullius; it is incapable of private appropriation just like outer space.

The vast openness of virtual space gives its users enormous freedom. According to professor Lawrence Lessig of Harvard Law School, the default in cyberspace is anonymity. Anonymity encourages and enhances the exercise of freedom. A child too shy to express himself in the physical space can feign to be somebody else in virtual space, and express himself freely. Internet, thus, can transform the attitude of its users.

The internet also provides speed and ease of transmission of both voice and data. The facility in communication greatly enhances global trade. Goods are traded over cyberspace in lieu of the traditional person-to-person mode. Huge amount of money is transacted through computers and even cellular phones. Paperless transaction has become common. Even court filings are shifted to electronic means. The volume generated by electronic business is enormous even as the temptation for white collar crimes is likewise immense.

Facility of publication and the potential of anonymity, however, can also be detrimental to the dignity or reputation of third parties. The internet is also a medium for character assassination, and purveyors of bogus news at no harm to the perpetrators.

Crimes of global repercussion are also committed with the use of the internet. Trafficking of persons, child pornography, kidnapping for ransom, and terrorism are perpetrated with the use of cyberspace. Freedom thus in cyberspace should not be exercised without the concomitant responsibility of its users.

Lessig’s “The Laws of Cyberspace” proposes that behavior in the real world is regulated by four constraints: law, social norm, market, and nature or architecture. According to Lessig, the most important real world constraint is the “architecture” because all other constraints depend on it. For example, in the real world, the constraint of being a kid prevents him from entering a porn shop and buy porn. He can disguise by wearing a moustache but it will soon be discovered. Thus the kid’s architecture is a constraint effective in preventing him from patronizing a porn shop.

It is different, however, in cyberspace where the default is anonymity. While it is difficult to hide as a kid in the real
world, it is not in cyberspace. Here lies the difference between the real world and cyberspace, its regulability. Lessig proposes that cyberspace is a less regulable space than real space.

The internet is a dynamic or ever-evolving work-in-process. What is in vogue today may be passé tomorrow. Such dynamism characterizes the architecture of cyberspace. Thus, it is indeed difficult for the government to regulate cyberspace based on its architecture. The best, and perhaps utmost, that the government can do is to regulate use of cyberspace. The emphasis of the regulation would be on the conduct of the user, and its consequent effect.

* * *

Frank E. Lobrigo practiced law for 20 years. He is a law lecturer and JSD student at San Beda College Graduate School of Law in Manila.