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Chris Reed and Andrew Murray

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Chris Reed and Andrew Murray

From Chapters 1 and 2 it follows that the internal perspective of the resident of a rule-system such as that of a nation-state cannot tell us anything about the authority of law in cyberspace. From the external perspective of the law’s addressees we see that it is their collective acceptance of a rule’s authority which generates the normative obligation to obey it. From this external perspective, the rule of recognition they use appears to be that a cyberspace actor should obey the authority claim if it appears to be legitimately addressed to it, and that will be the case if the actor perceives itself as a member of the community which the lawmaker regulates. If an actor is a member of multiple communities, the most authoritative claims will come from the closest connected community. This means that no state law claim has any innately stronger authority claim than any other, but rather that they compete with each other for acceptance in cyberspace.

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Chris Reed and Andrew Murray

Chapter 4 asks how a lawmaker might achieve primacy over all the other purported lawmakers in cyberspace. Although law is framed as commands which demand obedience, we find that law does not actually function as a form of control, achieving compliance through fear of sanctions. Each individual law’s claim to obedience becomes part of the wider normative landscape, and the factor which determines whether it has authority is the response to it from those to whom it is addressed. Lawmakers cannot use code to achieve their desired control by mandating the shape of code because it is equally as susceptible to subversion and evasion as law. In both cases, the controls desired by lawmakers are subject to acceptance by the regulated community, and the community reactions will often force a reshaping of law or code to achieve that acceptance.

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Chris Reed and Andrew Murray

Chapter 1 asks why any particular state’s law should have authority outside its geographical territory, and particularly in cyberspace. A state’s constitution is not binding on cyberspace users outside its territory and thus cannot give its laws any collective authority, as a legal system, in cyberspace. Law therefore must derive from acceptance by cyberspace users of a particular state law’s authority. But this does not confer general authority on the other laws of the state. This means that lawmaking authority in cyberspace has to be assessed at the level of individual rules of law, not at the law system level. Each rule derives its authority from acceptance by those it claims to regulate. It thus has authority over the members of the lawmaker’s extended community in cyberspace, but that community is dynamic and constantly changing. So a law has authority over a cyberspace user only whilst that user is a community member.

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Chris Reed and Andrew Murray

When legal authority claims compete with each other in cyberspace, lawmakers need to respond by adopting strategies which increase the chance that their claim is chosen for acceptance. The legitimacy of their claims plays an important part here, because illegitimate claims will not be listened to. Constitutional legitimacy is unhelpful because all lawmaking authority claims are likely to be legitimate in a constitutional sense. Instead, the lawmaker needs to concentrate on other aspects of legitimacy, particularly the output legitimacy of its laws, which is based on the extent to which the claim appears to be addressed to the cyberspace actor, its congruence with the existing technical and normative environment, and how far the claim appears to be fair, just and likely to achieve its aims. In cyberspace, output legitimacy is what gets the law’s claim a hearing.

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Chris Reed and Andrew Murray

In Chapter 8 we examine the role of lawmakers in establishing and maintaining the rule of law in cyberspace. We identify a core ‘laundry list’ that seems to apply to all definitions of the rule of law, but its six elements are all problematic in cyberspace. Although (1) law is usually set forth in advance and thus prospective, the ways in which it has sometimes been applied by courts and regulators have produced effects which are in practice retrospective in cyberspace. The requirements that (2) law must be made public, (3) law must be general, and (4) law must be clear, are severely challenged. The requirement that (5) law must be stable and certain fails because of the cumulative pace of legal change; and the necessity that (6) law must be applied to everyone according to its terms is not achievable in a space where identically situated cyberspace actors will face differential claims to authority and potential enforcement action from the multiplicity of applicable laws. The jurisprudential analysis in the preceding chapters shows that by recognising that laws can only have authority for their community members, both chosen and found, and restricting any claim to apply them outside that sphere, the rule of law can be re-imposed in cyberspace.

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Chris Reed and Andrew Murray

Because law in cyberspace does not take effect as commands, there are several possible responses from an addressee. These include partial compliance, negotiation, active opposition and evasion. Addressees of law and regulation are nodes in a communications network, and the flow of information in that network is two-way, so that the content of law and regulation is determined by the regulatory settlement achieved through those communications. Gatekeepers like Google and Facebook play an important role in this process, and their communications necessarily have more weight in the regulatory process than those of other nodes. States might be able to re-impose control by regulating those gatekeepers and requiring them to act as a proxy for the state in an attempt to control the activities of other cyberspace actors, although we believe there may be other factors which will prevent this strategy from being fully successful.

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Chris Reed and Andrew Murray

Laws from nation-states are not the only sources of normative authority in cyberspace. Chapter 2 discusses a number of examples of rule-systems, such as ICANN in relation to domain names and eBay for consumer disputes, which derive no authority from state constitutions of laws. In spite of this, their authority claims seem to be obeyed by cyberspace users in preference to the authority claims of states. It argues that the apparently greater authority of these rule-systems is explained by cyberspace users identifying themselves more closely with the community of the non-state rule system than with the rival state community, and notes that this can occur even if the cyberspace actor is a citizen or resident of that rival state.

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Chris Reed and Andrew Murray

In Chapter 5 we argue that in cyberspace, laws and other rules which claim obedience only have contingent authority. Their claims compete for acceptance by cyberspace actors, not only with each other but with established social norms. Thus a lawmaker must understand the competition which its authority claims will face. Law has an inherent strength of claim merely by virtue of being a law, but that is never strong enough to overcome a large gap between its demands and those of established social norms. Lawmakers can attempt to move social norms in various ways, including via ‘nudges’, but success is never guaranteed, and a legal authority claim which is too incompatible with the existing normative landscape is highly likely to be rejected by cyberspace actors.

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Chris Reed and Andrew Murray