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Normative Experience in Internet Politics

Françoise Massit-Folléa
Cécile Méadel
Laurence Monnoyer-Smith

Chapter 1. From Code to Law

Paul Mathias

Texte intégral

  • 1 This article is a partial translation of a chapter in a book by Paul Mathias [Mathias, 2008]. All (...)

1Cyberspace is apparently uniform, at least in so far as the set of protocols and access points are isomorphic and the territorial locations of the operator and the user quite insignificant1. Though the Network is not a space of isomorphic practices, each point of access nevertheless opens the way to roughly the same pluralistic set of practices: emailing, web surfing, file transfers, and the like. No doubt there are constraints on these actual uses, since access to the Internet is sometimes subject to very severe rules. The territorial location of a user can have an impact on his or her personal practices. That does not mean that the digital structure of the Internet is in itself heterogeneous, but rather that territorial regulations are multiple and heteronomous. More precisely, within the homogeneous protocol space of the Network, there is a great diversity of implemented regulations. It is as though the same territory – in this case cyberspace, a “virtual territory” – were simultaneously subject to many distinct modes of management and functioning, both internal (programmes) and external (laws).

  • 2 Cf. the relativistic and sceptical schema of justice as exemplified in Montaigne (Essays, II.12, F (...)
  • 3 This basis of a relative “homogeneity” does not imply that the Internet is homogeneous in all its (...)

2But in fact, we are not dealing here with the classical phenomenon of a territorial distribution of rights and rules, nor with the judicial disparity outlined by an existing plurality of legal configurations2. The classical schema of the plurality of Law, which is a theme in ancient and modern scepticism, is updated here in a context which excludes spatial separation and geographical limitation. It is not the disparity of territories that counts, but the tensions persisting between a multiplicity of territorial access points subject to local laws and rules on one hand, and on the other a certain homogeneity of the network – at least at its most general level, that of TCP/IP3 – which should be exclusively subject to the digital norms of various communicational activities.


3An analysis of the normative aspects of the Internet requires taking into account not only the territorial diversity in access points and thus in rules of use, but also the qualitative diversity of regulations to which this numerically polyvalent space is subjected. Now paradoxically, the normative aspect of the Network is not the result or the synthesis of a plurality of heteronomous or contradictory constraints; it resides, rather, in their maintained diversity and the digitally multiple ways of accessing cyberspace. The effectiveness of the Internet, i.e. its operational capacity and persistence, reveals in this respect a number of very diverse tensions, resulting from the combination of at least two orders of constraints confusedly interwoven into each other.

4The first comes from a plurality of regulatory principles which can be either of an ethical or deontological nature (“netiquette”, “good practices”, “charters”), or of an administrative or legal nature – laws and sets of rules concerning telecommunications, among others. The second order of constraint comes from multiple legal authorities, which can be either internal to the Network and its social spaces, such as its own management procedures or the access providers themselves; or external to the Internet, when regulations attempt to echo the laws of the various existing States.

  • 4 For example, when a law allows it, a certain range of addresses can be rendered inaccessible to a (...)
  • 5 When Law defines the regulatory framework for access to the Internet, it inevitably determines the (...)

5The relationships between the code which orders the technical functioning of the Internet and Civil Law, on the one hand, which regulates both the code itself4 and network practices5; and, on the other hand, the rule of the market, which in the form of navigational constraints (popup windows for example) betrays the economic interests at stake – these relationships between computer code and Civil Law, between computer code and a variety of laws, are quite simply saturated.

6As can be seen, the regulatory contours of the Internet are drawn on the basis of a motley assembly of diverse principles, which can relate to private or public interests, to interests connected to national or military security, and so on: it is necessary to protect private life, or to render market transactions secure, or yet again to anticipate and to prevent terrorist acts, etc. But on the other hand, the ready availability and the flexibility of underlying computer code make it possible to constitute a number of different spaces which are more or less autonomous with respect to each other, and thus introduce a diversity not only of structures but also of practices, and of relatively scattered forms of network experience. The booming popularity of blogs and other forms of self-publication is not primarily due to the conquest of new semantic spaces, but has its source in the invention and the development of new programming languages – hence SPIP (a software package for on-line publication), hence Netvibes (a space for the publication of contents), hence sites of syndication like, DiggIt, etc. Professional practices within a highly secure space obviously cannot be the same as leisure playing in an open public space. Now with these differences in practice, there are also differences in the set of deontological, ethical, legal rules which regulate one or the other space; and, above all, there are differences in the various levels of programming which serve to put them into practice: blocking programmes in one case, programmes controlling requests and analysing their source in the other.

  • 6 The Creative Commons licences seek to break with a binary logic of either protection or else total (...)

7Not always well recognized, this phenomenon of normative saturation nevertheless calls for a reflection on both the legal and technological processes of reaction that it bears witness to. Certainly, computer code alone should in principle be appropriate enough to guarantee the implementation of Law in the reality of network practices. But it is not enough to postulate such a principle, it is also important to reflect upon the general intelligibility of the law, all the more so since it is now formulated in a language that is not naturally its own. For example, what is the language most appropriate for defining the authorisations and limitations stipulated by a “programme licence”? One can answer the licence should be intelligible to an ordinary user. Which is why all Creative commons licences are formulated in our natural language. But they are also formulated in technical and legal terms. And they are systematically accompanied by the computer code making it possible to insert them into the very heart of the product whose use they define6. This means that in cyberspace, a licence will always correspond to certain analysable digital data, as such controllable at a distance, as when the password for unblocking a programme is verified by comparison with its developer’s database. In other words, legal reflection must be developed in a language which is not traditionally its own, and whose grammar and syntax are superimposed to its own. By becoming code, laws are thus brought to integrate themselves in structures or semantic constraints evidently foreign to it, as well as to evaluate a priori the regulatory possibilities thus opened to it – or yet again to assimilate a rhetoric which belongs to computer engineering, and not to the legal literature. In this way, we see that there is not “Law” on the one side, and “Code” on the other; but rather that they meet not in a simple coexistence but in a fundamental and constitutive mixture.

8One risk thus comes to light – that the regulatory work accompanying the blossoming of the Internet might be purely reactive. Not because Law is thought to respond to the technological advances and new requirements of “civil society”, but because the regulatory prerequisite would take precedence over any authentic reflection concerning the nature of cyberspace and its properties, its possibilities and the meaning of network writing or the forms of expression it promotes. The real or imagined urgency of legislative action carries the risk of prevailing over the necessary attention, the theoretical distance, and the serenity that are required for adequate reflection on the affordances of the Internet. There is a tension between the fact that on the one hand the Network cannot be mastered nor any induced practices controlled and the fact that, on the other hand, there is a true requirement for a stabilisation and a consolidation of these practices and their technical environment. When this tension reaches a critical level, there is easily – and perhaps necessarily – a switch towards a denial of the fact that the Net cannot be tamed, and an effort to force a security-minded technological appropriation of its spaces of application [Goldsmith & Wu, 2006]. There is no dearth of arguments purporting to justify such a course: highlighting the normative criteria of the practices which are to be authorized, normalized and consolidated; rendering the transactions more fluid and encouraging the development of the digital economy; favouring the participation of citizens in political life – in a spirit of “security” and “trust”, these two feelings being on occasion opposed and on occasion akin. Take up a classical set of concepts from the “theory of Law” [Kelsen, 2009]: if laws participate in a “constraining order” and if, at the same time, practically every possibility of actually exerting “constraining acts” in response to illicit practices is dissipated in the meanders of the Internet, what can one and what should one conceive as a law that would be appropriate to the dynamics of the communicational flows and the uses made of them? Paradoxically, what is in question here is much less a presumptive defect in the law, a defect in the legislative gesture or the ill-adapted nature of the regulations to the virtual territory of “cyberspace”; it is more a question of a certain sort of convergence, or at least an interweaving of the regulatory mechanisms which frame network practices. At the heart of the difficulty, there is the question of the legality of the law itself, as a means of taking control of network operations. This is obviously not a question of knowing whether the legal clauses applicable to communities on the Internet are coherent with pre-existing law, or whether they are admissible on an ethical level – those are questions which arise with any new laws, and which do not concern the Internet specifically. The question of the legality of the law is rather that of the legality of the way it is actually put into practice, and to know whether the regulations conceivable as adequate to network practice actually perform the regulatory functions normally assigned to them. In the final analysis, is the legality of Internet laws truly appropriate to the completely novel space of the Net, to what is imagined as its “virtual” reality? To put it quite simply: is it possible to affirm that on the Network the law is the law and stays the law; i.e. is the law capable of laying down the law?


  • 7 As an example, we may think of the case of the Canadian “Law on electronic commerce and informatio (...)
  • 8 At a Vox Internet conference held in Paris in January 2005, Christopher Marden, member of the Oxfo (...)

9As such, the Internet forms a genuine regulatory complex, where there is a meeting without clear convergence between normative principles from diverse fields, foremost civil and sovereign laws, which govern at least partially all our networking practices. These are subject to Law, sometimes in a direct way and sometimes in an indirect way. We may say that these practices are directly subject to the law when it defines the framework within which they are possible, as when we think of the set of regulations pronounced by a law on telecommunications or on electronic exchanges7. Network practices are indirectly subject to the law when it delegates the task of determining the conditions of their legitimacy to intermediate authorities. These intermediate authorities are sometimes public, such as the Authority for the Regulation of Telecommunications or the National Commission for Information Technology and Freedom; they are sometimes private, such as many Internet Service Providers (ISP) or even the Internet Corporation for Assigned Names and Numbers (ICANN). These intermediate authorities sometimes have the power to exert “constraining actions” – which occasionally gives rise to certain lapses bordering on the abuse of power or the abuse of law8.

10Whether they take the form of charters, contractual documents or regulations, the procedures for accessing the Internet are mainly based on “ownership ethics” put in place by business organisations; this is not of course against the law, but it constitutes an addition to it. This is because it is not only a question of guaranteeing the compliance of practices with the law, but also of rendering them compatible with their own interests, which are mainly economic, but sometimes also ideological, and even of promoting their own “business culture”. Not without a pinch of humour, Lawrence Lessig has noted that while America On Line (AOL) provides open spaces for virtual meetings between its subscribers, these can never gather in groups of more than 23, so that their exchanges can always be monitored by moderators who are in charge of defending the guiding principles of the supposedly homogeneous community of users affiliated with the firm [Lessig, 2000]. The supervision of networking activities, which includes the contributions of university or institutional charters, aims at inscribing the freedom of the users, which is always postulated, within the frame of “civility”, which is always desirable. The problem is that the specific character of this “civility” is always implicit or at least involves choices that are not exclusively ethical but also commercial or societal – without it ever being easy to understand what comes under what heading. The only certainty that one can achieve, then, is that the regulation of user communities supposes a form of “community morals”, implying some sort of social surveillance.

  • 9 A contraction of network and etiquette, the word designates a body of precepts describing the “pro (...)

11This brings us to one of the aspects that is most widely used yet least well defined as a form of Internet regulation: netiquette9. Always invoked, it does not exert any real coercion, and remains perceived as a deontological approach to network practices [Berleur, 2002]. The symbolic force of netiquette is maybe on a par with its practical weakness. This is not because it is considered with indifference, but rather because of the increased complexity of the Network and its affordances, i.e., concretely, the combined diversity of the offers of connection and the indefinitely large number of users now connected. The uniformity of the deontological constraint has become pluralistic and sectorial, so to say, so that it is pulverised in favour of the exponential growth of Internet users and the shared need to put some order into their exchanges, however diverse they may be. Different, multiple, opposed and foreign to each other, these exchanges are the source of a nebulous grouping of beliefs and practices, of opinions and convictions, which is perfectly impervious to any shared deontology. Thus, netiquette is rather like the blurred dream of an autonomous and spontaneous regulation of the Internet; and if it doubtless continues to “work away” under the table concerning reflections on the possibilities of regulating the Net, it is nevertheless the “forgotten link” in the chain of normativities, remaining in the shadows for busy regulators and exalted users. It is pertinent to interpret the slow, progressive and almost imperceptible disappearance of any serious reference to netiquette, as a sort of exhaustion of the principles on which it is based, i.e. an exhaustion of the supposedly natural and spontaneous deontology of the Internet. With the disappearance of the pioneers of the Net, or at least their dilution into the vast ocean of the great multinational public, with the diversification and the mass phenomenon of uses of Internet, the deontological rules of the American academic community that forged the netiquette have themselves become obsolete, or submerged by individualistic or even community practices, by far illassorted and heteronomous.

12However, the disappearance of the theme of the netiquette does not necessarily mean the disappearance of the netiquette itself. Rather, it might be better to speak of a highly diversified assimilation to the discursive and behavioural habits of Internet users – in the sense of an organism which would absorb the substances necessary for its own development. The interconnection of uses and users, the proximity or coincidence of certain practices, the capillarity and dynamics of Internet connections or the adhesion to its commercial offers seem to corroborate the idea that we are now confronted with a multitude of competing deontological configurations concerning “civility”. That does not mean that the Internet translates a sort of soothing reign of the netiquette. It rather outlines a competition between multiple forms of normativity at work simultaneously. It is indeed possible to distinguish between an endogenous and an exogenous normativity, the first having its source in the internal procedures of the Internet (protocols and induced uses), and the second outside the Network itself in the world of everyday life (laws, regulations, charters etc.).

13The endogenous norms form the natural, spontaneous regulatory system of the Internet, that is to say the system of uses which appeared at the same time as the Internet itself. It is actually, mainly, the netiquette and the vague but fundamental idea that there is a “correct” use of the Internet, a use of its resources which is relevant and “civilised”. Produced by Internet users for Internet users, this normative system appears as the closest to the native Net because it is exactly contemporary to it and is derived from the actual uses that it has engendered. Now, these norms of the Internet are not properly speaking an emanation of the Network

14itself, but rather, if one looks carefully, those of a well-defined socio-economic and cultural community whose ethics and deontology imposed themselves on an increasingly varied population of users, most of whom were strangers to that community’s original preoccupations and values. The “principle of civility”, the conviction that the resources of the Net call for measure and that its users deserve respect, those are moral customs pertaining to a sort of bourgeoisie whose contours may not be clearly drawn, but with an irreducible kernel. “A sort of bourgeoisie”? – that of the Humanities, Science and Letters, that of an economically prosperous academic world. For this reason it can be affirmed that the endogenous system of Internet regulation is fundamentally an exogenous system.

15On the other hand, the exogenous norms which are elaborated in order to accompany the development of the Internet, to tame its uses, and to render them one way or another compatible with each other as well as with the law (for example creations of cultural industries on the one hand, public consumption of their productions on the other) essentially derive, for their part, from the “codal” structure of the Internet, and not only from the conclusive ethical and legal principles that should be defended there. These norms do indeed directly define the technical protocols likely to regulate our network practices. The implementation of Law in the Network amounts to the implementation of judicial codes of conduct within computer code that is by itself functioning as a code of control: Transfer Control Protocol over Internet Protocol (TCIP). Based on TCP/IP without being themselves TCP/IP, the exogenous norms concern mainly the identification of machines and persons, the protocols for the security of data transfer, the certification of practices and transactions, and in the end the whole compendium of security issues which are covered by the blooming of the Internet itself. The law is actually inscribed at the heart of our machines and their protocols – sometimes in the form of silicon chips – and aims at rendering a vast set of digital and network processes observable and qualifiable. In this sense, we may therefore say that the exogenous system of regulation of the Internet is fundamentally an endogenous and “codal” system.

16Conjointly with the surreptitious weakening of the deontological constraints of netiquette, and with the increased though incomplete effectiveness of legislative directives on network practices, this interweaving of “endogenous” and “exogenous” norms bears witness to a veritable scrambling of the normativity involved in the Internet. “Scrambling” does not simply mean that it is difficult to discriminate what is deontological, for example, from what is ethical or legal. It means that we hastily manage in technico-normative terms a situation where we do not succeed in measuring the effects of the normative saturation we create. Under the influence of urgency – piracy, paedophilia, terrorism – it is asked to act directly at the level of the code, which is technically available. And this is done because we are not yet able to represent explicitly and precisely the way writing code should be articulated with an ethical and deontological mastery of the Internet. Neither can we imagine the way in which Internet practices should be normalised both on the digital level of computer code and on the level of the values it involves. In short, we take care of the urgencies and think about protocols aimed at controlling practices, we also tend to supervise the usages, thereby “forgetting” the aspects that are more difficult to understand and that require coming to terms with the irreconcilable contradictions of our public, political, social, cultural, economic and networked lives. In this way, the requirements of the users, their conceptions of their own rights, their aspirations to freedom of speech, even their ethical and theoretical illusions – all these aspects are relegated to oblivion as is neglected the fact that they fully exist, that they are pregnant and, so to speak, concretely invading the Network.


  • 10 FING (Fondation Internet Nouvelle Génération) Seminar, September 28th 2004.

17The circulation of speech and discourse, on the Internet, is not a subordinate or collateral consequence of its structure and communicational efficiency, it lies at its very heart: the Internet’s being is essentially this very circulation and it cannot be defined if not as the phenomenisation of speech and its intricate deployment. In this context, our representations of Law are not mere by-products of our usages, but they actually constitute these usages; because these representations – our representations – are not only conceptions but actual network practices. The Network offers us infinite practical possibilities, intrinsically accompanied by multiple normative evaluations, eventually provoking the situation of “normative saturation” previously mentioned. Within the context of the Internet, Law is represented as relatively indifferent, in any case ineffective if not useless or unjust, precisely to the extent that there is a large number of norms of diverse sorts which appear to enter into collision in the relatively restricted space of personal usages, apprehended through the prism of a “natural” individualism. In this line of thought, Dominique Boullier has spoken of a “normalisation of deviancy” related to the “invisibility of risk” associated with transgression of the law10. To go further, it may be argued that the invisibility of the risk is itself a function not of the objective powerlessness of the law, but of the idea that we usually have (by habit or carelessness) of its isotopic distribution. Summed to the point of saturation, the rules of cyberspace overlap and are confusedly assimilated with an isotopic fantasy that all rules have the same value, their regulatory effects being all weakened and their normativity being consequently perceived as null and void. From isotopy to dilution, and from dilution to indifference, our representations of the laws and our relation to them evaporate into a conception of Law as being without substance: both opaque, because we have difficulty finding justifications to it; and transparent, because it has practically no constraining effect on our online “second life” – and this multiple aberrant judgements make it impossible to constitute a legal precedent in this domain.

  • 11 I mainly bear in mind the popular “peer to peer” (P2P) communities. These are communities formed b (...)
  • 12 Someone who takes must be equally ready to give, otherwise he is discredited as a “leecher”.

18Scrambling, saturation, opacity, nullity. However, one should not rush to the conclusion that certain illicit usages derive from a schema of the Internet as being purely and simply bereft of any organisation at all. In fact it is impossible to conclude from the “deviance” of certain network practices11 to a generalized and militant refusal of any kind of regulation and legality. Indeed, it is quite paradoxical that whereas the normative saturation of the Internet sometimes provokes illegal behaviours, these behaviours emanate from communities spontaneously producing various sorts of lawfulness – or at least regulation – and contributing in their turn to the phenomenon of a normative saturation of the Network. Peer to peer communities, following older ones such as Hotline or Carracho communities, do not negate but affirmatively produce a multitude of rules, to the point of being considered strongly “regulationist”. If the leitmotif of these spaces can be summed up by something like: “Share the wealth”, the conditions of such sharing are often drastic and betray a singular amalgam of personal, economic, deontological or ethical interests. Based on the principle of an egalitarian and reciprocal sharing of resources12, these communities nevertheless sometimes allow for the emergence of not so fraternal interests – either because the software necessary to the connections are encumbered with a surfeit of advertising banners, or because server owners provide access only after tediously long paths of initiation, with more or less unavoidable and generally arbitrary detours. Such private regulations sometimes reproduce, under the cover of “sharing”, a number of arguments actually very close to those of the major access providers: references to “social morality”, “equity”, even to technical constraints on the bandwidth.

19Normative saturation is thus the predominant state of affairs: the Internet mobilizes principles, values, rules, laws, and in a certain region of “cyberspace” this gives rise to a chaos resulting from their shocks and collisions. From this we can conclude at least two things. Firstly, we observe on the Network a break-up of the schema of transgression, because transgressing the law no longer amounts to denying it, but in such cases to reproducing it, often in a form and with constraints very close to those of the law one is transgressing. In this sense, the transgression turns out to be the conversion of one form of regulation into another, P2P communities and the like reproducing the work of the law in a way that is perfectly traditional. Then, secondly, we may witness a true break-up of the schema of individualism, which no longer amounts to the simple “egoism” of Internet agents: as a producer of regulation, the Internet opens to a rather naïve and fantastical ideal of a community of peers, individuals gathered around supposedly similar interests and who give one another the illusion of possessing and sharing a “common good”. The lawless egoism so strongly denounced by the cultural industries is in fact backed up by the sheer fantasy of an Internet identified as a system of equitably shared resources. For instance, the “gift economy” is as largely unbalanced within P2P networks as is the givers/takers ratio; and the latter are frequented not so much in such a way as to struggle against “the Capital”, but rather as to consume digital goods and provoke the emergence of new economic patterns based on advertising, pop-ups or even the mutualisation of resources. Where, then, does the essential lie? In “the Rule” ordering usages and constraining them to produce wealth, to however slight a degree.


  • 13 [Dworkin, 1986].

20One way or another, then, the regulatory saturation of the Internet induces a requirement not for lightening but for reinforcing the normative devices liable to be developed and put into practice across the Network. Which means there are no fundamental obstacles to “Law’s Empire”13 or the extension of rules and the influence of interests (legitimate or not) corresponding to them. Hence a diversity of “normativist” positions involved in the process. Except that, in the end, “normativism”, which is alternately proclaimed or unconsciously taken for granted, lacks the means to take the full measure of the relation between Law and its purported goals: order, constraint and ensuring the security of cyberspace. This is because its context and territory, whose realities are essentially symbolic and discursive – cyberspace – exceed the digital devices and procedures put into operation when aiming at normalising network practices and rendering them perfectly homogeneous to those of our “real” and “ordinary” life. What is indeed the sense of “the Law” when it touches not upon beings or things, but upon flows, circulation, replication, dissemination, enunciation and the production of an immaterial tissue of routes, passages, sets of temporary harbouring or simply meaningful items: texts, images, music? In excess of itself, the Internet is here and now laden with such volatile digital “affordances” that we apprehend neither the norms nor their limits.

21It then remains to ask the question of the goals that an implementation of the law should seek to attain with respect to the Internet. From a very general point of view, the questions that are posed to the development of the Network are hardly different from those that the lawmaker meets when he confronts the discoveries of biology and their ethical consequences or the increase in nuclear power and the urgency to hinder its exploitation by the so-called rogue states. Without apparently presenting the same degree of urgency or gravity, the blooming of the Internet calls for a reflection concerning legality as such, not merely as the fair distribution of laws beyond territories and amongst users, nor as the desirable and optimal diversity of rules applicable to network practices. It calls for a reflection on the nature and the meaning of the principles to which any such distribution of norms should remain subject, and on the body of rules which are necessary for the equitable prosperity of the Internet. These rules should presumably be “democratic”; but the term “democratic” is in fact questionable, uncertain in its determination, and in any case difficult to adjust to the constraints of “deterritorialisation” and the ubiquity of practices. The adjustment of code to law does not simply require an effort to make their two worlds coincide, it entices us to reflect on the conditions of possibility of such an adjustment and, consequently, on a renewal of the very procedures for the creation of Law.

22It would seem that this reflection should be performed upstream of the procedures actually implementing legal schema to the Network, upstream of the definition of practical rules governing the Internet together with the computer programmes designed to render them operational. Here, “upstream” refers to two sorts of argument, one centred on the work of Law, the other on the participative practices of network users.

  • 14 A lawyer and a theoretical jurist, Pamela Samuelson is also a member of various organisations invo (...)

23a) The first of these two arguments was sketched out by the American lawyer Pamela Samuelson in a presentation [Samuelson, 2000] dating back to the year 200014. To summarize, we shall note that she identifies five conditions for an appropriate adjustment of laws to the fluid reality of the Internet.

  1. The adjustment of the new laws required by the development of cyberspace to old laws which rule certain traditional practices, whose new forms can be modally but not essentially distinct. This is not a question of watching over the systematicity always required in the production of law, but rather of identifying the issues where the law might stumble and novelty is required, compared to those where past laws remain valid15. Then it remains to discover or invent the fields where laws require renewal reviewing, while taking into account the fact that pre-existing law always necessarily determines itself the conditions of its own mutation.
  2. The proportionality of the legislative action to the difficulties that are actually encountered and understood as related to the development of the Internet: network practices are too complex for them to be subject to legal categories that are global and homogeneous; the effort at regulation, even when it appears legitimate, notably on the ethical level, is liable to produce counterproductive effects of negation of the law. This is a warning pertaining to anticipate the threshold beyond which legislative activity commutes into the abuse of law and power.
  3. Then the flexibility of the work of the law is a major point. This means that regulating the Internet should not be purely reactive and emerging from constraints linked to technological progress; it should be prospective and related to political and social objectives that should be aimed at. If legislation is necessary for codifying the process of electronic signature, writes Pamela Samuelson, this should not just concern and coincide with certain digital protocols that happen to be available and in working order; the legislation should be able to anticipate future developments, and concern so to speak the very idea and principle of “electronic signature” in its application to the various areas where it might apply, such as commercial transactions, administrative procedures, etc. In other words: it should not be technology that should constrain laws but, conversely, the reflection about the ways of generating law that should anticipate the horizon of upcoming technologies.
  4. The underpinning of legislative activity should remain the concern and the defence of human values, the integrity of persons and their freedom of expression: “preserving the public sphere, in which information is accessible to all, and in which learning, speech and thought can occur without the threat of private control or censorship.” Internet should be a common good or a resource for Humanity, not a tool in the hands of economic and commercial powers, nor even of particular ideologically biased communities and societies.
  5. The guarantee of “transnational” cooperation would be the last condition for legislation appropriate to the networks and to their immaterial nature. The idea is not exactly that the legislative measures and the authorities involved with Internet law should be fully international; indeed, the cooperation between States is a process which is notoriously slow and laborious. Rather, the idea is to optimize the “inter-regulation” of legal systems and the political systems which underpin them16. In this sense, the Internet would be the cause of a relatively novel inflexion in the very nature of “international law”, since it would open a third way between the idea of laws that are common to all – but which pose the problem of the overriding authority charged with ensuring their respect – and the reality of laws which are strictly national and territorial, which traditionally oppose each other or at least derive from strongly distinct cultures and ideals.

24b) “Upstream” reflection about Law on the Internet can also be argued as follows.

25The ubiquity, diversity and volatility of computer and communication practices make it urgent to achieve the required legal and more generally normative mutation of the Network – even if this will be difficult if not improbable in the short term. In “The Accountable Net: Peer Production of Internet Governance”, David R. Johnson, Susan P. Crawford, and John G. Palfrey Jr confronted the traditional principle of sovereignty with a series of practical problems arising from the development of the Internet: “spam”, “spyware”, and more generally “security concerns”.

26The guiding line of their argument was that “sovereign” procedures for codifying and sanctioning practices are destined to fail, and that governing the Internet is a matter of normative co-production among peers – this collaboration of all with all allowing for the perspective of “an accountable Net ” [Johnson et al., 2004]]. This is not to say that “direct democracy” is the only viable course for regulating the Network. Rather, the argument consists in proposing a switch in the question of regulation from the sphere of the data – on which one attempts to exert a control by coding the contents and guaranteeing the security of their transfer – to the sphere of the users, by promoting an a priori regulation not of the transactions themselves but of the community of users who are the cause of such transactions. Making sure of one’s partners, rather than of the integrity of the data, means participating in communities where one has ensured their reliability in advance. The regulation of the Internet would thus consist in creating spaces of reliability and, in a metaphorical sense, in a way of “territorialising” the communicational flows and exchanges on the basis of opportunities, preferences and community choices. “Parity” would indeed result from the identification of common interests and the mutual recognition and esteem of the actors. This would make it possible to allow for a sort of “atomisation” of the universal Internet community, for the constitution of autonomous ideological “pockets” – so that it would always be possible to evolve “from pocket to pocket” – and for the constitution of as many “governances” as there are cities, independent of each other and regulated according to their members. Thus, where it was believed that the Internet amounted to the future of a single worldwide humanity, one should rather recognize a constitutive movement of autonomous fraternities and externalised solidarities: a mosaic of “Greek cities” which are pacified rather than competing, prosperous to the extent of their autonomy, strangers to one another to the extent of their own particular interests.

27The theoretical positions relative to the idea of “peer governance” are manifestly those of an individualistic and anti-universalist humanism, based on the presupposition that we would always know “in person” reasonably, if not rationally, which are the networks to which we should belong to optimize our condition and prosper in our lives. Achieving our own “good” would be the same as stabilizing our connections with others and making them reliable; and it would also be, in this context, that the communities in which we participate and whose regulatory principles we would adopt, would become “congruent”, i.e. would purely and simply form a normalised fabric for our personal and reciprocally compatible activities, all ordered by similar and homogeneous practical principles.


28A reflection on the law of the Internet concerns not only the way of inscribing it into the Network, but above all the way of producing it and generating its legitimacy: if the conversational exchanges and their disorderly fruitfulness are to prevail, it is implied that the law can and should effectively be the concern of all – it being up to the theory to understand what “all” means, and how it is not just a conventional humanist postulate, empty and ineffective. The law of the Internet should thus be our business, the business of us all – operators and actors considered as a whole. This means both that civil institutions cannot effectively be the exclusive promoters of such Law and, at the same time, that since the Law of the Net has a pretension to universality, or at least ubiquity, it cannot expect to project itself onto worldly network spaces and practices from the sole basis of the relatively narrow perspectives of the Western democratic academic world. The law of the Internet must be thought of as a process of distributed legality and, no doubt, in this respect, as a communicational and conversational effect, like an effect of shared discourse and procedures. But sharing, on the Internet, is not that of reason. Nor that of unreason or madness: network rationality is polymorphic, and so to say “contradictional” – if we mean by that not that it fosters contradictions, but that it feeds on contradictions and thereby reconfigures itself indefinitely. The law of the Internet would thus constitute not an unequivocal formalisation of behaviours but an assumption of responsibility for plurivocal and polymorphic values and their constraining effects. However, the irreducibility of the Internet to a single unequivocal schema of rationality effectively implies widely divergent practical positions concerning its state as well as its future possibilities.

  • 17Institutionalization under ICANN means that the Internet’s role as a site of radical business and (...)

29Concluding “Ruling the root” and a long analysis of the multiple procedures by which diverse political and institutional authorities have invested and “tamed” the Internet, Milton Mueller now concedes, with a trace of bitterness, that the innovative role of the Net on the political, economic and social levels, has ended up subsiding and fading away altogether [Mueller, 2002]. He initially advocated the free and spontaneous development of these practices; but they have been taken over by a forced and inauthentic regulation17. Where there was pluralism there is now a forced unity, that of profit, prosperity, uniformity, and the assumption that certain ethical and social forms of culture are obviously pre-eminent. Practically, Milton Mueller makes a distinction between the authentic freedom of which the Net is – or was – the privileged space, and the inauthentic regulatory activity which has progressively led to its exhaustion. One might object the irreducibility of the Internet to any single schema of cultural and legal rationality induces the persistent but moving formation of a social and political mosaic both at the level of individual nations and at the transnational level. This does not mean such a mosaic is the condition for a universal and pacified “living-together”, on the grounds that such “living-together” was characterised by a mere discursive and symbolic dimension, a virtual, reticular and communicational dimension. Let us rather agree that the overriding influence of economic and security powers on the Network does not induce the sheer disappearance of “authentic” modes of production of network civility, and that they maintain a competition between the normativities of which the Internet is globally and really the consequence.

30This is, in sum, the theory of a contradictional modalisation of Internet law – in fact an erratic conservational genesis of highly diverse “laws” – which makes it possible to think of the regulation and its circulation not as a process of pacification ensuring the security of network transactions, but rather as the indefinitely reiterated regulatory effect of a universal principle of dissent. Where “dissent” is precisely accepted as such, maintained, fortified and eventually sublimated in the creation of new and original forms of discursive coexistence. Internet practices seem indeed to be far from any consensual ideal and they tend towards “provocation” – a provocation not towards disorder but towards a permanent reorganisation of network spaces; not towards an inconsistent and nihilist activism, but towards a renewed conception of the government of the Internet: a provocation to conceive the “City of the Internet”, and fundamentally the very possibility of its “governance”.


1 This article is a partial translation of a chapter in a book by Paul Mathias [Mathias, 2008]. All our thanks to the publisher and the author.

2 Cf. the relativistic and sceptical schema of justice as exemplified in Montaigne (Essays, II.12, Florio trans.) : “Law and justice, if man knew any, that had a body and true essence, he would not fasten it to the condition of this or that countries customes. It is not according to the Persians or Indians fantazie that vertue should take her forme.” – Or in Pascal (Thoughts, Brunschvicg ed., section 5, 294) : “A strange justice that is bounded by a river! Truth on this side of the Pyrenees, error on the other side.”

3 This basis of a relative “homogeneity” does not imply that the Internet is homogeneous in all its aspects. The TCP/IP protocol does indeed allow for different sorts of transit, with codes that can be open or closed, with rates that can be high or low, and perfectly heterogeneous induced practices. As such, the Internet is actually highly differentiated.

4 For example, when a law allows it, a certain range of addresses can be rendered inaccessible to a certain user or category of users. This was notably the case towards the end of the ’90s, when it became impossible for a French computer to access the sites of Netscape or Microsoft to obtain highly encrypted versions of their navigators. In this case: “Law rules code”.

5 When Law defines the regulatory framework for access to the Internet, it inevitably determines the variety of its uses – and so: “Law rules network practices”.

6 The Creative Commons licences seek to break with a binary logic of either protection or else total abandon of all rights concerning a product, in particular cultural products. They do indeed make it possible for the creator to choose amongst a varied set of uses of his or her work, for which the reproduction, the copying, the transformation can be variously claimed and accepted. In this way there is a sort of legalized adjustment between a supply and a demand. More details at the URL: (last accessed on date of publication).

7 As an example, we may think of the case of the Canadian “Law on electronic commerce and information” (August 18th 2000) which defines what kind of “realities” are items such as an “electronic document”, an “information system” or an “electronic signature”. There is also, of course, the French law on the “Rights of authors and related rights in the information society” also known as “DADVSI”.

8 At a Vox Internet conference held in Paris in January 2005, Christopher Marden, member of the Oxford Internet Institute at that time, mentioned the recent episode of a comparative test of the procedures for the defence of authors’ rights in the USA and in Europe. On both sides of the Atlantic, a pretence complaint was lodged with certain Internet Service Providers concerning the fact that the text of John Stuart Mill entitled On Liberty, published en 1869 and which obviously belongs to the public domain, had been put on-line on some of their servers. The American ISP that was contacted let it be known that they would undertake an enquiry concerning the legitimacy of the complaint, and that after this examination they would determine the technical measures appropriate to the situation. By precaution, the European FAI suppressed the Web pages reproducing Mill’s work outright, before any examination of the question.

9 A contraction of network and etiquette, the word designates a body of precepts describing the “proper use” of Internet resources. Dating from 1995, a reference document about it can be found online at the URL: (last accessed on date of publication).

10 FING (Fondation Internet Nouvelle Génération) Seminar, September 28th 2004.

11 I mainly bear in mind the popular “peer to peer” (P2P) communities. These are communities formed by users interconnected to each other through “trackers” where they find a list of files available for downloading – legally or illegally.

12 Someone who takes must be equally ready to give, otherwise he is discredited as a “leecher”.

13 [Dworkin, 1986].

14 A lawyer and a theoretical jurist, Pamela Samuelson is also a member of various organisations involved in the reflection about the regulation of the Internet, for instance the Electronic Frontier Foundation.

15 It is important to insist on this first matter, since in its report entitled Internet and digital networks and adopted in July 1998, the French State Council considered, when defining its “general philosophy”: “There does not exist, and there is no need, for a specific law concerning Internet and its networks” (La Documentation française, 2002. Web address of the report: (last accessed on date of publication).

16Policy interoperability, that is: agreeing on goals a policy should achieve, while recognizing that nations may adopt somewhat different policy means to implement the goals.” — On the notion of “inter-regulation”, cf. [Frison-Roche, 2005].

17Institutionalization under ICANN means that the Internet’s role as a site of radical business and technology innovation, and its status as a revolutionary force that disrupts existing social and regulatory regimes, is coming to an end.” (op. cit., p. 267)

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