Law making meets technology

France, as you know, discovered this in the case of an online advertisement for the sale of Nazi memorabilia. France had laws which were designed to forbid glorification of Nazis or sale of Nazi memorabilia. But securing the effective implementation of those laws in a technology which is is global, really demonstrates, the borders at which powers of the single state (except perhaps the USA) to control and regulate the use of the Internet is limited.

In the United States there is the great principle of the First Amendment: Congress shall pass no laws to abridge freedom of speech and freedom of the press - it is a very absolute principle.

It’s not a principle that we in Australia have adopted. We have more measured, more nuanced principles in our law that often compete with freedom of expression - values such as freedom to secure protection of your reputation, of your privacy, your honour, of your family.

But the important point for us is to never forget, in the context of the Internet, that asserting our values, like France asserting its values is one thing. But it is often quite difficult to enforce: technically and in reality in a world of a global technology.

We have to be modest in our appreciation of what we can do.

The third parable: human values and exceptional cases

The third parable was brought home to me in a conference I attended in London in 2007. The conference was to establish TELOS - a new group in the University of London concerned with technology and the law. It was concerned with all technologies; but very much focusing on information technology.

One of the points made in the conference was connected with Lessig’s notion of Code. It was illustrated by one of the professors of the University of London. She described how the London Underground got rid of all their cheery ticket sellers and ticket clippers and substituted machines with machine readable tickets.

You put the ticket through and the barrier opens. Occasionally in London, I’ve had to search around and I’ve found a cheery ticket person. I’ve said “I need to take this ticket back to prove I spent £4 to go from Heathrow to the City”. They’ll let you pass through and keep your ticket. A human being has the last word.

In France, irritated by the large number of people who jump the turnstiles, they now have steel metal barriers which close completely. When you walk through the barrier the whole thing opens. There is no jumping. There is no getting through. If you make a mistake and the machine gobbles your ticket - there is no redress.

The moral of the third parable is: there are values that we have to ensure somehow that we defend.

Values of discretion. Values of fair dealing. Values of review. Values of challenge. Values of reconsideration and thinking again. Human judgment. That’s just the nature of a civilised society. You have to allow for the unusual and the exceptional case.

The fourth parable: everything is global now

The fourth parable and last, arises out of a journey I took last week to Cambridge University in England for a meeting there of the Hague Institute for the Internationalisation of Law.