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Law & Internet Cultures :: Kathy Bowrey

:: Chapter Two: Defining internet cultures

You should now have some idea about why a discussion of internet law requires a consideration of the role of significant private actors as well as the role of legislators and the courts. In this chapter we consider more closely how we can study the legal power of private actors. The objective is to clarify what it is that we are looking for when we study particular private actors and their legal influence. Here law is taken to primarily encompass technical decision making, however this may also interface with the work of the legislature and the courts.

DISCUSSION POINTS

• What are the range of factors that are important to tracking the global exercise of private power?
• Why do we want to identify the cultural dimensions of internet regulation?
• How do we do this?

These are methodological questions about studying internet regulation.

Globalisation literature: Why is it important?

The second chapter begins with an acknowledgment that much of the critical writing about global power and internet culture is found in the Humanities- in Media, Communications, Political Theory, Cultural Studies, Sociology, Cyberculture studies. Clearly this literature provides a useful staring point for our inquiries into the global power of private actors.

Globalisation literature is dedicated to exploring transformations that are taken as defining our time. The literature describes changes to the nature and structure of power and how it is exercised - in economic, political, cultural and legal domains. These writers describe a very broad range of processes, mechanisms and actors involved. However the discussion usually leads back to a re-evaluate of the role of the nation state and how national priorities are perceived and reconceptualized.

Globalisation is treated as a transition from and to - however it is usually discussed quite abstractly and as a process with an indeterminate beginning and end. In other words, globalisation is analysed as ongoing transformation, where each Nation State may manifest particular bureaucratic and legal responses to the same pressures differently. It is realised that no two Nation States necessarily begin with the same circumstances or strive for the same end result. Further it is usually accepted that not all Nation States are equally equipped to negotiate the demands made by other participants in the global marketplace.

The presumption is usually that globalisation is driven by large corporate interests and the interests of developed countries, and that developing nations have less to gain. However even in discussions of developed country interests, assessments of costs and benefits can be quite ambiguous. This relates to a problem of the social scientist aligning their opinion to closely with that of any particular community or interest. It should be noted that some writers debunk the very notion of globalisation as a distinctive socio-political phenomenon.

An excellent site for beginning to explore the politics of globalisation is the Global Transformations text-site, devised by David Held and Anthony McGrew. You should explore the material on this site and familiarize yourself with the way this topic is treated.

Globalisation data indices

While many sociologist and political scientists are reluctant to prescribe the features of globalisation, nonetheless there are many “indexes” of globalisation. These range from quite sophisticated and detailed explorations. See for example Held & Grew’s “political-legal indicators… to map the enmeshment of individual states in processes and networks of regional and global governance”.

There are also much barer statistical treatments, see 2004 A.T. Kearney/FOREIGN POLICY Globalization Index.

This Index is described as tracking and assessing changes in four key components of global integration, incorporating such measures as trade and financial flows, movement of people across borders, international telephone traffic, Internet usage, and participation in international treaties and peacekeeping operations.

The 62 countries ranked in the 2004 Globalization Index account for 96 percent of the world's gross domestic product (GDP) and 84 percent of the world's population. Major regions of the world, including developed and developing countries, are covered to provide a comprehensive and comparative view of global integration.

Explore the 2004 A.T. Kearney/FOREIGN POLICY data table and listing for various countries.

The Australian Bureau of Statistics also provides local data that is used to suggest similar transformations and economic strengths. They provide a number of statistical indicators that relate to a knowledge-based economy and society. The ABS focuses on tracking three main areas: Innovation and entrepreneurship, Human capital, and Information and communications technology.

There is a diagram representing the relevance of these three indicators to economic and social impacts.

You should explore the particulars of Measures of a knowledge-based economy and society, Australia.

There is also a more situated analysis of Australia’s position in the information economy explore the Caslon Analytics site.

Note the intellectual property aspects of the ABS statistical analysis is specifically considered in our new course

LAWS 4016 International Context of Intellectual Property.

• What does this kind of data tell us about globalisation?
• Why is there an interest in this kind of data?
• How could this work carry its own policy momentum?

I am also thinking here of the writing alluded to in Chapter One on cyberlibertarian values as well as Held & Grew’s description of hyperglobalists:

“Hyperglobalists argue that we live in an increasingly global world in which states are being subject to massive economic and political processes of change. These are eroding and fragmenting nation-states and diminishing the power of politicians. In these circumstances, states are increasingly the 'decision- takers' and not the 'decision-makers'.”

See What is globalization?

• How might politicians become ‘decision takers’ rather than ‘decision-makers’ ?
• Is this necessarily a new thing, or a bad thing?
• What does this presumed shift in political priority mean for liberal-democratic justifications for power and legal authority?
• Is a globalization index ranking of a nation important?
• Is sponsoring the information economy a national priority, or is it just hype?
• Assuming this was a national goal, how would you act on it?
• Read these recent CNN articles, Dot-com mania, part II? and Internet stocks: Great expectations
• What are we to conclude about the Dot com boom and bust?
• What is an “internet stock”?
• What does the value of internet stock tell us about the information economy?
• What are the cultural aspects of this kind of data analysis?
• Does this kind of analysis have implications for internet regulation?

Cultural Indicators & Corporate Influence

Note that in most globalization studies “cultural” indicators are tracked, specifically in terms of trade in “old media” product. Here cultural influence is seen to be associated with the presumed unconscious adoption of the cultural content of the communications products.

Held & Grew warn of misplacing evidence of sales with evidence of cultural impact. Nonetheless they suggest industry based data that provides a useful starting point. An equivalent Australian site for data about “old media” companies in the information economy is Ketupa Media Resource.

Others sites are more about hype. See for example

Randolph Kluver, Wayne Fu, Fate of National Cultures

“We have created a ranking of the 20 most culturally globalized countries by measuring each nation's exports and imports of books, periodicals, and newspapers. (The dissemination of movies would be another ideal indicator. Yet data for films are only available for a small number of countries.”

In many studies the presumption is that US cultural influence is exercised through media and entertainment conglomerates, whose power has been strengthened through the technological convergence and vertical integration. Some sites that explore this politics include: All power to the barons

This website is typical of many that connects media ownership and technological change with monopolistic practice. This one has an interview with the US academic and well known media commentator Robert McChesney. He starts with linking technological convergence, digitisation with changes to the media experience of consumers; he moves on to talk about media concentration being extended through vertical integration; and then explains the paradox that new media and technological change is not actually much of a threat to media ownership. It is simply a new opportunity to further entrench control. This was the Lessig line adopted in the Future of Ideas book, and extended in Free Culture.

What is the role of government here?

In a lot of analysis of the politics of the media and the global information economy the presumption is that with convergence and vertical integration, media specific arguments, different industry histories, players, backgrounds, localised regulatory contexts, are peripheral concerns, diminishing in influence or already practically eliminated.

My worry is that this is based on a rather crude analysis of the entertainment industries and the economics of globalisation.

For the most part it is media ownership that is seen to be the important power that dictates outcomes. Technology makers and/or distributors are treated as opportunistic bit players, and vulnerable to the strategies of content owners. Surely this needs more thought.

How does media ownership translate into control or influence?

The media ownership chart.

Lessig reproduces a scaled version of this chart in his Free Culture book, which can be downloaded in pdf. Format for free.

In terms of describing the changes in global media tables such as these are very common. They demonstrate how global media corporations are getting bigger in reach, breadth and ownership.

Vertical integration with the telecommunications industry, software industry, appliance industries and content owners clearly does continue apace. None of these charts take into account the BMG/Sony merger that reduces the players from 5 to 4. But in the analysis these enterprises are treated as all American in expansionist spirit and management, even if their holdings and portfolios are more diversely distributed. This links into thinly veiled allusions to economic and cultural imperialism, that seems quite determinist in the manner of much bad 70s Marxism. The critics are channelling old economy theories of economic power, without acknowledging that, or considering globalisation as involving different mechanisms.

Not all are so simplistic.

This one is from a more sophisticated Washington based site. It says: Journalism.org - An annual report on the state of the news media 2005. .

In their 2004 report they noted

“The effect of this on journalism is not as simple as the traditional arguments about consolidation might suggest. Critics have decried declining diversity of ownership and the rise of chains in media for 70 years. But the trend continues anyway.

Over the years, the Supreme Court has repeatedly upheld a core principle: out of a diversity of viewpoints, we are more likely to know the truth. Yet we are moving in conflicting directions where we have more outlets for news but fewer owners.”

• More outlets with fewer owners…Still what does that imply about the consequences of ownership?
• Why are media ownership issues considered important to discussions of global power?
• How do these concerns frame the regulatory context?

Case Studies

“One of the things that really interests me is that, as a sociologist, you talk about power -- power in the economy, the organization of the economy ... power to move things. Who [has] the power in the global economy today?” Gary Gereffi

There are some interesting case studies of how particular corporations have affected changes to the manufacturing sector, that are useful for understanding social and economic change and concerns about the global marketplace. A particularly good study can be found at a website devoted to a Frontline Documentary

Is Wal-Mart Good for America?

The program and interviews illustrate the role of communications technologies in restructuring supply and demand, from the local to the global levels, with a particular emphasis on the social consequences for communities, workers, smaller businesses etc. It raises interesting questions about how priorities are determined, and who determines them. It neatly illustrates the political framework of globalisation and the capacity for large corporations to effect major social and economic change. It also highlights the frustration of local actors and communities in expressing their inability to impact on these decisions.

Here the focus is not on debate about what legal policies should be, but on the seeming absence of any legal or democratic framework capable of calling private decision makers to account for the impact that they have on citizens. The title brings to the forefront the question of “America” and what that title represents to the world, and to its constituents.

• What do we mean by “US influence” as a global phenomenon?
• Is it a useful focus at all?

More theoretical work

The significance of these transformations of power are also the subject on much theoretical work. Two examples, amongst many include Lyotard's The Postmodern Condition: A Report on Knowledge (1979) and Hardt & Negri’s Empire (2000).

The Postmodern Condition is often said to represent the beginning of Postmodern thought. It was originally written as a report on knowledge for the Quebec government. Lyotard examines knowledge, science, and technology in advanced capitalist societies. Here, the very notion of society as a form of ‘unicity’ (as in national identity) is judged to be losing credibility.

Lyotard

The deterritorialisation of power, and the command of transnational corporations and the organization of markets is also explored in

Hardt & Negri’s Empire. You can download the entire text of Empire.

There is also a useful review. globalsite review

In this literature US power is not presumed to be confined to the action of the Government or merely the prerogative of large corporations. The information economy is understood as not merely a question for the IT and telecommunications industries. However while critical of the advance of global economy and power of MNCs, from a legal perspective I find the work is quite disengaged from the actual mechanics and structure of power. The legal processes and precise mechanisms by which globalisation, information economy and US power advances are gestured at theoretically and abstractly. It is particularly vague in terms of addressing the practicalities of who is responsible for decisions in a distributed system, what the important decisions are, and how these are made. The specifics of government and law re not really considered here and this leaves the treatment as quite instrumental and unproblematised.

So what to do?

What do I mean by taking a cultural approach to law?

To avoid the problems of

• - unhelpful generalisations about the exercise US power, and
• - the imprecision in describing the mechanisms of power

Law & Internet Cultures takes a site specific approach to the question of legal and technological power.

Chapters 3-7 focus on the culture of key communities of actors who seek to make a difference and exercise significant levels of control over the development of internet technologies and the way we can use them. This technological power seem to be the structural backbone of the broader changes associated with globalisation.

The selection of actors is not empirically or scientifically justified. In theme, it is not necessarily all that different to the areas which you might find studied in other cyberlaw courses. However priority is given to considering actors that assume responsibility for key architecture, and ideas about computing and information technology markets. In each of the areas studied the participants have consciously sought to address questions of social and legal responsibility and of legal entitlement or “right”. Their discourse generally incorporates justifications for their decisions and an awareness of their ability to affect others.

In recording their own histories, philosophies and internal debates about the correct way to exercise authority and act in the world these actors have created their own, distinctive kinds of culture and “jurisprudence”. It is not jurisprudence as lawyers usually talk about that term because it is non-expert. However there are “official” processes for validating policy, principle and justifying determinations. This discourse often contemplates the proper role for legislatures, courts, other formally constituted global law making bodies and other jurisdictions, in making policy and resolving disputes. There is often advocacy for particular legislative and judicial support for the “private” decision making.

Law & Internet Cultures presumes that there is no universally “correct” way for dealing with internet law. However in studying this power, it is important to uncover the various assumptions, values, opportunities, alternatives, and different manners of negotiation, where they present. Internet law is emerging from an enormous nexus of developments which are numerous and thick. However a methodology for studying these issues can more rigorously be developed than we have employed in the past. The way power is technically and legally exercised can be more fully described and understood, and what is at stake in particular issues, and their impact, can be more fully exposed.

Why do the chapters of the book begin with stories?

The first two chapters of the book talk about the importance of stories in understanding the world we live in. I am interested in exploring humanist themes in relation to communications technologies, and fiction provides ready access to ideas, emotions and ways of beginning to talk about the impact and power of these “technical” matters. The short stories provide a frame of reference for exploring our worries or concerns about the future, and a site for reflection on which concerns we share. Stories provide an easy way to quickly start a dialogue that does not presume any particular academic or technical background to the regulatory issue or specialist knowledge of the community. Hopefully the stories provide a space to think, where we can articulate what or whom we identify with and why. These issues are integral to understanding, more broadly, questions of responsibility.

Science fiction is an obvious place to begin. One of the recurring themes of this literature is the relationship between the technical ordering of the world and the corporate powers that create that, and the individual and community. In science fiction humanity is often treated as a question of possibility. We can illustrate this theme by viewing a few clips.

The Matrix

The first Matrix film is often used in cultural studies and philosophy courses because it is packed with lots of references that are seen to reflect the spirit of the time ahead - if we don’t get our heads around questions about the emerging social order.

• Clips 3 Follow Instructions
• Clip 5 They’re coming for you
• Clip 9 Down the Rabbit hole
• Clip 10 Slimy rebirth

What does the Matrix suggest about:

• - computers, the internet, pervasiveness of work & home
• - the power of programming and controlling the networks
• - corporate power
• - policing/military power
• - who is in control
• - the pace of change
• - instant data updates
• - the irrelevance of law, democracy, nation state
• - family, community, politics, religion
• - liberty and freedom
• - what went wrong?

Is there such a thing as “internet culture”?

If so, how is it produced?