Regulation of Internet Commerce

Ideology and Policy

A paper concerning Democracy, the History of Economics and Anarchy.
April 2000

The internet is a new and developing technology that embodies an

absence of centralized control but an infinite economy. It is a global
virtual public space that provides a forum for trade, debate and a place to
question authority. It creates an arena, allowing for direct participation
in public decision making processes, as well as access to almost every
jurisdiction in the world. The policies that regulate the internet will help
to build and shape this new medium.

The application of law to new fact situations and technological

innovations depends as always on policy considerations, legislative
initiatives and socially desirable pragmatic results. The policy aspects of
regulation rely on basic assumptions about the nature of our social
organization such as the role of the state, the promotion of capitalism and
democracy.

The internet is a sophisticated technology of ideas and it will be

tailored to fit the ideological mould from which it originates. Its
regulation will reflect what ideas we prefer and what limits we require that
mould the shape of an emerging media while conditioning our contact and
communication with each other.

There are many competing ideologies pressuring the internet to conform

to specific standards of regulated interaction. The internet poses a
challenge to traditional modern regulatory assumptions, a challenge that
sometimes is put forward under the rubric of anarchism. Internet regulation
law will be responsible to legislate a balance between competing ideologies
and reflect the extent to which these ideas are blended, supported or
denied.

The final shape of the internet will reflect either a response to

open debate over various ideological conflicts in democratic international
forums, or will be the result of global conformity to a unified standard
brought forward under the pressure of economics. The seeming impossibility

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of regulating a multi-jurisdictional international space forces us to re-
examine our many basic beliefs, such as if we should regulate at all, what
should we be regulating and to what extent?

Throughout this paper, the interplay between technology, ideology and

policy shall be used as criteria to examine the possible solutions proposed
and the merit of internet regulation. Primarily achieved through an
examination of the history of two competing ideologies, economics and
anarchism. The hope is that by understanding more about these competing
ideologies and proposed regulation solutions for the internet, a more sound
comprehension of the shape the internet will eventually form and the impact
that shape will have on us as users will become apparent.

This paper will discus topic such as the role of the state and
jurisdiction, democracy and constitutionalism, individualism and
sovereignty, media studies. This analysis shall be done in the context of
providing insight for comments on the legal issues of privacy, criminal and
tort law, copyright and trademark law, domain names issues, e-commerce, the
use of cryptography, and the apportionment of internet service provider
liability.

The Internet
Originally constructed to promote a military agenda, the very form of
the internet seems to suggest a recipe for the growth of decentralization,
direct democracy or anarchy. Yet at the same time it offers the possibility
for a more efficient, centralized, effective commercial space. Unlike most
other forms of communication, the Internet has no fixed physical location,
central control point or permanent intelligence. Instead, all stored
information and network management is widely distributed, allowing each
remote entity to be in charge of its own area. Each such entity has an
equivalent level of authority, priority and control. All work together
according to a common set of technical rules and standards.

The Internet is becoming an increasingly prevalent medium for personal

communication and an essential means of commerce. As this virtual space
increases in size so do the unfortunate by-products of fraud and crime. Ever
more business deals (ranging from simple purchases of goods to complicated

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contracts) are done on the net, but it also provides a new medium in which
to defame or infringe copyright.

Marshall McLuhan, Understanding Media, The Extensions of Man. 1964.

Marshall McLuhan was a media analyst as well as an English professor

at the University of Toronto. He built on and extended the ideas of
preceding works by Harold Innis. (Innis, The Bias of Communication, 1951.)
McLuhan's media analysis demonstrates the importance of the role and impact
of media on our social and economic organizations.

"We become what we behold, we shape our tools, and thereafter our
tools shape us." This general idea relates as much to the development of
Papyrus as it does to the printing press and the internet. For McLuhan, the
common striving of mankind is a search for innovative solutions to ease the
labour of our bodies and transcend space and time. Stone is hard to move but
lasts a long time. Cars move faster and serve to replace or extend the reach
of our feet but only last a few decades. Typography developed as a landmark
media extension of our oral culture, and electricity (the medium of the
internet) resembles an extension of mind and impulse itself. Electronic
media transcend the barriers of space and time into the realm of the
simultaneous virtually defeating the limitations imposed on us by space and
time. The internet is potentially permanent and mobile.

A culture dominated by typography tends to be rational, sequential,

linear, authoritarian, while a culture dominated by electricity is similar
to a pre-literate society and resembles the oral tradition, non-sequential,
mythological, simultaneous, and non-authoritarian.

"It is the medium that shapes and controls the scale and form of human
association and action." According to McLuhan, the history of social
organization is controlled by media and driven by technological inventions.
Every new technological development in the uses of media result in a new
organizational state structure. This idea suggests that accompanying the
technological development of, for example, papyrus, Rome was able to extend
its reach and form an empire relying on the power of the medium of paper
used to organize, count and record inventory, stock and population census.
The greater flexibility of papyrus over other organization mediums, such as

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bead counting or stone carving, created the ability to form and govern a
larger political organization then had ever been possible before.

Similarly, McLuhan posits that the development of the printing press

created the ability to form the modern nation state, with accompanying
letterhead and propaganda, as well as creating ideas focused on limiting the
power of the nation state, such as the libertarian ideas of "individualism,"
and "sovereignty." Today, public sector government and private sector
corporations want to harness the benefits of increased organizational
efficacy gained from the power of using the internet.

"It is the business of mass media to sell products." This quote

prophesises the fate of the internet. The nature of mass media itself
attracts commercial activity and it seems inevitable that it will suffer
from the deluge of advertizing that motivates so many influential and
important market decisions in our communities. But whether this medium will
be used in a "hot" active aggressive way, or a "cool," passive manner,
remains unascertained. Businesses are flooding online, scrambling to use the
advertizing potential of the net and create web pages that expose "surfers"
to their sponsors. Plenty of activity on the net is motivated only by the
profit motive.

In the context of understanding media, if McLuhan is correct in

asserting that we become what we behold, an increased pressure is placed on
questions of internet regulation as we decide or do not decide, how to
regulate and structure this medium.

Ideology and the Shape of the Internet

The internet as a technology demonstrates characteristics of

democracy, capitalism, and anarchy. It allows for absolute control by groups
or individuals of specific preferences, but independently people can make
choices as to what type of technology or use of technology they support; a
full broad spectrum is created of various diverse solutions or creations,
this spectrum can be represented by Internet Service Providers.

The internet represents decentralized decision making power. Anyone

anywhere can create a virtual public space where they can make all the

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decisions about what occurs and who is present limited only by the
technology itself. These ideas are embodied in chat groups, BBS's,
newsgroups, or web pages. This freedom is accessible only within the market
system, so long as the user can pay for the resource. The decentralized
aspect of control is chaotic and anarchic. It is a collection of multiple
individual spheres of sovereignty that effectively prevents single party
control within what will hopefully become a large democratic arena of
debate, and a large global market. At the same time, the internet technology
is built for and under the pressure of economic incentives and controls,
conforming within a free market capitalist system which promotes the
centralized conforming tendencies of economy and efficiency.

Legitimacy and Public Decision Making Policy

We generally accept the notion that the persons within a

geographically defined border are the ultimate source of law-making
authority for activities within that border. The "consent of the governed"
implies that those subject to a set of laws must have a role in their
formulation.

Similarly, allocation of responsibility among levels of government

proceeds on the assumption that, for many legal problems, physical proximity
between the responsible authority and those most directly affected by the
law will improve the quality of decision making, and that it is easier to
determine the will of those individuals in physical proximity to one
another.

In general, comity reflects the view that those who care more deeply
about and better understand the disputed activity should be able to
determine the outcome.

Democracy and Constitutionalism

Democracy in Canada is closely associated with ideas of

constitutionalism. In the Quebec Succession Reference of 1998, the Supreme
Court of Canada tells us that the Constitution "embraces unwritten, as well
as written rules." The constitution of Canada includes the global system of

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rules and principles which govern the exercise of constitutional authority
in the whole and in every part of the Canadian state. Legality and
legitimacy are linked, in our constitutional history and the basic division
of powers in ss.91, 92 of the Constitution Act 1867, is the primary textual
expression of federalism principles. The evolution of Canada's
constitutional arrangements are characterized by the adherence to the rule
of law, respect for democratic institutions, the accommodation of
minorities, insistence that governments adhere to constitutional conduct and
a desire for continuity and stability. Underlying constitutional principles
may in certain circumstances give rise to substantive legal obligations
having full legal force. Keeping in mind that federalism was arrived at as a
compromise between the federal and provincial governments, so that the
provinces may retain independence and autonomy under the Crown, a central
government was formed representative of all provinces and entrusted with
authority only in affairs in which they all had a common interest.

The concept of democracy requires that the provincial legislature and

federal Parliament are elected by popular franchise through representative
and responsible government, and that everyone has the right to vote.
However, democratic institutions rest primarily on a legal foundation under
the rule of law. It would be a grave mistake to equate legitimacy with
majority rule, to the exclusion of other constitutional values, such as
accommodation of minorities. Democracy requires a commitment to discussion.
The principle of constitutionalism requires that all government action
comply with the Constitution, the rule of law, and the law. Constitutional
government is necessarily predicated on the idea that the political
representatives of the people of a province have the capacity and the power
to commit the province to be bound into the future by the constitutional
rules being adopted. In this manner the Constitution acts as a safeguard for
fundamental human rights and individual freedoms. An expression of the
democratic will of Quebec to succeed goes only so far as to confer
legitimacy on the Quebec government to initiate a Constitutional amendment
process in order to secede by constitutional means.

The conception of Canada that the Supreme Court holds out to us is

based on four constitutional principles underlying the constitution of
Canada - federalism, democracy, constitutionalism and the rule of law, and
respect for minorities. It is an ideological blending of democracy and

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Parliamentarianism. Unspoken or unrecognized in the Quebec Reference is the
strong link between parliamentary democracy and capitalism. Canada is best
described in the ideological terms as a form of Democratic Capitalism. Our
constitution represents a marriage between democracy and the unwritten rules
of capitalism. These ideas define our nation state core values.

Democracy, Equality, and The Rule of Law

"We are all equal under the law." This famous phrase, formulated by
Dicey, relates to equality of legal rights only. However, enforcement of
those rights is dependent on the resources and the ability to pursue
effective remedy. Canada promises legal equality, but does not support any
kind of actual equality, equality of resources.

Although in Canada, unwritten economic policy favours resource

equalization payments to the poorer provinces, our democratic capitalism
goes only so far as to establish voting rights, constitutionalism and the
rule of law, and legal equality. This is probably because equality of
resources is in direct contradistinction with ideas of capitalism, which is
premised on inequality of resources. Capitalism suggest that only through
the threat of deprivation can we motivate a general population into
production and feed them with the wage system. Divisions of labour and
resources are essential to the competitive model that allocates resources.

Democratic capitalism is itself almost an oxymoron, positing material

inequality among legal equals. Capitalism is at best a blended aristocracy
and meritocracy, even within a constitutional framework.
Democracy devoid of constitutional ideology expresses itself best in
ideas involving direct democracy (participation), liberty, and equality.

The internet has the potential to demand more public participation. A

democratic space that invites discussion and hearings which allow groups to
participate in decision making processes, such as selecting content
standards for ISP's, and choice of secure e-commerce space.

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Autonomy and Self-Rule

Marshall McLuhan claimed the printing press was the birth of the
nation state and individualism. With the advent of typographic reproduction,
leaflets were printed containing the original treaties of the rationalist
movement which began in the mid 1700's, in the days of Voltaire and
culminated in the works of Rousseau and John Locke a century later.

In the liberal theories of people like John Stuart Mill and Locke,
theories were formed around ideas of "individualism," "sovereignty," and
"autonomy;" concepts which developed in classical economic terms in
ideological opposition to excessive state control. "Self-rule" was preferred
as an efficient allocation of market resources as opposed to excessive state
authority.

Ideologically, this presumed economic autonomy was in direct conflict

with ideas of democracy. It denied material equality, the cornerstone of
"sovereign equals" and "autonomous" participation, while depriving economic
actors of "free will," by foisting on them economic pressures. Democratic
ideas are founded on consensus building, participation and equality, not
market pressure.

Computers and Economics

Perhaps the calculator was the advent of the first electronic commerce
space. The ability to electronically record and compute transactions is a
watershed in technology. The analysis of credit transactions that occur
within virtual space will be a powerful economic tool to represent the
choice of each individual and exert direct control over the market. The
internet is the calculator writ large. That portion of commercial
transaction which take place in virtual space will create new powers for
people as well as have the potential to provide efficient delivery of goods
and services.

This customer centred conformity of virtual space has the potential to

reflect a substantial proportion of individual or group spending preference,
recorded in a statistical mathematical manner, and could be used to pressure
market decisions and predict consumer habits.

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 Economists from the 19th Century would argue that we should allow the
growth of e-commerce to occur strictly in the private sector. Economic
theory trends suggest otherwise. A brief history of economic thought will be
useful. The following information is from A History of Economic Thought by
William Barber, 1967.

Classical Economics

Beginning with the ideas of Adam Smith (An Inquiry into the Nature and
Causes of the Wealth of Nations, 1750) and ending approximately with John
Stuart Mill (1850's) the framework was laid out for classical economics.

The analysis of wealth or economic growth began by focusing on

determinations of economic value based on the agrarian model. The three
categories that created wealth were land, capital, and labour. These relate
to value derived from the use of rents, profits, and labour.

Industrialization

The first ripple encounter by classical economics came from sources

such as Karl Marx, around the 1850's. He focused on the disparity of
equality between the various classes and proposed reorganization of the
traditional economic model that divided people into landowners, capitalists,
or labourers. Marx advocated the overthrow of the bourgeois capitalist by
the proletariat labourer, and the confiscation of land under the centralized
control of a Communist government. He also predicted that capitalism and the
wage system would end in revolution because the mass of people, the
labourer, would not allow the ownership of resources to be managed by the
few, the rich, once capitalism ran its course creating a gulf of disparity
between the rich and the poor.

Neo-Classical Economics

Neo-classical economics began around the turn of the century and

provided more analysis on the processes through which the market system
allocates economic resources. The application of supply and demand curves,

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micro-economics and price theory help calm many of the disquieting aspects
Marx created around classical economics. It accomplished this by ignoring
the class division and working from the assumption of the existence of the
"autonomous" rational wealth maximizer as subject for study.

Alfred Marshall was a professor at Cambridge in the late 1890's. He

created the notions of supply and demand being able to fix a fair price for
the exchange of commodities in an industrialized society. These mathematical
equilibrium curves assume that people act as rational agents pursuing
economic ends. Another assumption required was formulated in Say's Law,
which says that all income must be spent. Hoarding was seen as irrational,
and the cause of a poor economic climate. The interaction of rational
economic consumers and producers would create an equilibrium and fair price
so long as premised on rational economic action seeking to maximize wealth.
In this environment, market objects gravitate toward optimum value and use,
wasting nothing. Government intervention was seen to bear a heavy
responsibility for waste, inefficiency and misallocation of economic
resources.

The neo-classical preoccupation with efficiency in production and

exchange diverted the attention from distributional inequality and from
divergences in the interests of various groups within society, while
focusing on the myth of the rational person as a conforming economic agent.
Although Marshall himself warned against using this fiction as justification
or explanation of the reality of economics, which were based on
considerations other than maximizing wealth, many theorists since have
claimed that these models are like a mathematical formula that actually
govern market situations and decisions. These ideas are strongly represented
in America at the turn of this century, promoting free market laizze-faire
principles based on individual initiative, and reward.

Keynesian Economics,
General Theory of Employment, Interest and Money, 1932

Keynes represents the next change in economic theory and his ideas
were created between the two world wars. His economics theory claimed that
Laizze faire capitalism was inadequate to the increased problems of
industrialized societies and that government initiative, hereforto seen as

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wasteful, should support and safeguard the economy, for example, the
implementation of anti-trust competition law.

For Keynes, it is prudent to hoard as a hedge against risks of capital

loss, in opposition to Say's Law. Keynes also advocated deliberate
government deficit spending during conservative times to artificially
increase the demand for consumption. The idea is that by spending money on
infrastructure, public works, or boondoggling, money spent will trickle down
the line and benefit everyone by increasing consumer spending.

These ideas are responsible for our current level of debt to G.N.P.
ratio. A large part of Keynes contribution to economics was the
determination of the G.N.P.

Economic Theory and E-Commerce

What is clear from the preceding is that the commercial nature of any
transaction renders it justicible at common law. Transactions, facilitated
by law, birthed by public and democratic institutions, are open to
regulation by policy, or statute, just as much as open to review, by the
courts and individuals directly. The institutions that originally gave
legitimacy to exchange in the form of legal transactions should then proceed
to regulate and ensure access, predictability, reliability while developing
the overall growth of the service.

In the 1990's economic trends have borne out that hoarding money
against future hard times is a good idea. Many governments resorted to using
Keynes as a justification for increased spending. However, just as it is
prudent for individual economic actors to collect capital as a buffer
against recession, so to would it be prudent for our government to do the
same. Only after a period of saving should deficit spending be contemplated
as sustainable for short duration.

Borrowing money to stimulate the economy eventually drags down future

prospects because of large debt accumulation. This national public debt gets
transferred to the provincial bodies as an attempt to create a national
balanced budget. The provinces cut back and increase the debt load of
municipalities, and municipalities transfer that debt load onto individuals

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in the form of taxes and service fees. Individuals with large debt loads are
not as willing or able to act in society as rational economic actors as they
become merely slave-like, a labour pool, and the profit of their labour is
never used except as debt and interest reduction. For example, the cutbacks
in education in the early nineties created a large squeeze on the pocket
books of university students. In socialist leaning countries, these
educational institutions were used to serve the population at relatively low
subsidized costs, promoting rational democratic economic actors. Now
students graduate with a 40-70 thousand dollar debt to repay. In this way,
Keynesian economics has supported increasing economic pressures on the mass
of people rather than create an economic benefit. If the government ever
does pay down its debt, the best thing it could do with the proceeds would
be to reform not just tax law, but also debt law to alleviate this mass
burden on the individual actors in our economy.

One of the premises of economic manipulation is the relationship

between the total volume of capital in the market place and inflation. The
relationship may be somewhat murky, yet in general, the amount of hard
currency printed impacts on inflation rates.

One recent development in our economic system is the creation of

private capital lending institutions. Although Ottawa controls the amount of
hard currency printed, they have deregulated and lost effective control of
the credit industry so as to gain leverage in the American market. It would
be daunting to try and assess how much credit is used as an alternative to
and expansion of our hard currency market. The great depression began when
stock brokers attempted to call in outstanding accounts and found not enough
real money to cover credit lent, this is a generalized account of the panic
that created the great economic crash of the 1930's. With the advent of the
internet and e-commerce, the extension of credit will be infinitely
multiplied. In other words, credit systems and e-currency can increase the
amount of available capital in the market, global or local, creating the
potential that there will not be enough real money to pay it all back,
creating the psychological factors which bring a market crash, or
correction. Another alternative is that economic pressure forces the
government to print more money to pay outstanding debt, yet this behaviour
increases inflation to match the net gain in currency. The internet
facilitates a centralized global market, but economies thrive on growth and

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expansion. I do not think it bold to suggest that Marx's predictions about
the collapse of the market system are unfounded, they may just not have
waited long enough for fruition

Anarchy and the Nation State

Nietzche said that a desire for Anarchy is rooted in ressentment. It

is a reaction against something. Typically, that something has been the
nation state.

The Rationalists posited that the equitable just state would arise
from the use of reason, and centralized authority. Rousseau and John Locke,
their ideas continuations of the earlier philosophers from the likes of
Hobbes and Macheavelli, charted out the means and ways of western
libertarian abstract states that today are our inheritance. Torts, contract,
property, legislation, education all have imprints of Locke's scientific
rationalisms, a unique 19th century romantic illumination, if not illusion.

Radical political reformers began advocating systems of anarchy as a

reaction to these rationalist constructions. Currently, in common parlance,
the word anarchy is synonymous with lawlessness, an environment for the
strong to beat the weak, it is only used as a term of disparagement. But
this was not always the case. At one time it was a serious political
ideology. Today it survives in various forms throughout the world, such as
in a Quebec Public Interest Research Group as Concordia. A brief sample of
their mission statement may prove to be a good example,

"Most anarchists work toward a non-coercive, non-authoritarian society

organized from the group up: one based on mutualism, self-management, direct
democracy and free association. They envision a world where men and women
are free and equal and have power over our own lives, bodies and sexuality;
a planet where we cherish and live in balance with the earth and value
diversity of cultures, races and sexuality; a place where we work and live
together co-operatively."

One of the common themes of anarchism is the need for a revolution. To

an anarchist this revolution should take place at a personal level. It is a

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personal change that creates the conditions for a revolution. Again, a
learning statement from the Quebec Public Interest Research Group at
Concordia,
"How we learn…
Everyone has a wealth of skills and knowledge to share; we are all both teachers and
learners. We become free and creative thinkers when we have the opportunity to
critically discuss what we learn. Social interaction and co-operation are important
to our education. Self-confidence is built as we are respected for what we know.
Learners are empowered when we are encouraged to articulate our own concerns and
become involved in our communities."

Anarchy is a history of pragmatic political ideas involving concepts

of federalism and de-centralized power. It is a body of literature loosely
ensnared under the term of Anarchism, including many divergent and
contradictory points of view. It is similar in this way to the common law,
in its ad hoc, piece meal application of principles and fact. Warnings
against participating within a national state organization resound back to
Greek antiquity. The ideas are very old, but its political history began in
the middle of the 19th Century.

Proudhon, 1850's

Pierre Proudhon is credited with being the "Father of Anarchism." His

libertarian ideas involved advocating a form of sovereignty association in
the guise of a decentralized federalism. Anarchism was presented as a
pragmatic solution to commerce and trade. Anarchism was to be founded on
concrete and practical solutions of organized society for the mass of
people, a conscious attempt to avoid abstractions and self-created power
ideologies.

It was proposed that a tariff free environment would allow for

individual effort and needs to efficaciously guide the flow of material
goods from union owned manufacturing centres to the people. The minimal
impairment of the individual by the government was key to a cost effective
environment, as least intrusive as possible, while eradicating the
govern/governed class difference. He coined the refrain, "Property is
theft," and was most concerned with minimizing the role of authority in
society to the maximum.

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 However, Proudhon did not advocate an absolute or extreme position but
rather warned against utopianism, and absolutism as a kind of thought which
fails to distinguish between concrete reality and abstract products of the
mind. In The Federal Principle, 1852, Proudon sought to find a realistic
pragmatic balance in political life between,

"Authority and Liberty, two principles which underlie all forms of organized
society, on the one hand contrary to each other, in a perpetual state of
conflict, and on the other can neither eliminate each other nor be resolved,
some kind of compromise between the two is necessary. Whatever the system
favoured, whether it be monarchical, democratic, communist or anarchist, its
length of life will depend to the extent to which it has taken the contrary
principle into account."

Anarchist society is to be achieved by reducing, simplifying,

decentralizing and suppressing, one after another, all the wheels of the
state. He labelled himself a practical reformer and saw the life of society
as perpetual reformation, reform of which should go on unceasingly. The role
of the federation was to reserve power for the citizen rather than the state
based on free association concepts. Proudhon was in favour of private
ownership of small-scale property. He opposed the corporate ideal of
individual ownership over large industries because workers would lose their
rights and ownership. Property was essential to building a strong democracy
through co-operative associations, like labour unions, but only as to
empower the mass of people not to benefit the authority of the bourgeoisie.
The ideas of Proudhon can be seen to have influenced the first anarchist
revolution which occurred at the Paris Commune in 1871. Although anarchist
thought after date was also used as an absolutist doctrine representing the
demand "for every human being the right and means to do whatever pleases
him." Proudhon's contribution to history is still reflected in politics
represented by mutualism and federalist movements of today.

The Free Paris Commune of 1871

Anarchy first appeared in the modern western tradition in the middle

of the 19th Century in France, the birthplace of democracy. It was an extreme
leftist, pragmatic working class reaction to the construction and

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establishment of the nation state, its accompanying distributive systems,
and the slow pace of democratic reform.

The Free Paris Commune of 1871 was the result of spontaneous civil
disobedience and was established at the end of the Franco-Prussian war of
1871 in Paris, as a viable political solution to the current political
agenda and as an alternative to paying war damages. It was a progressive
democratic working class model of local political organization.

The Commune took the form of decentralized federalism; demanding local

union autonomy in a larger free trade zone, accompanied by the abolition of
the state. Simply, the current day state was seen as an illegitimate
usurpation of authority from the people by the rich propertied class, an
authority that should be limited to the maximum extent possible.

Seized of self-proclaimed sovereign power, the inhabitants of Paris began

some modest reforms.

The abolition of outstanding debt of rents charged during wartime,

hold on all other debt. Educational reform such as divesting the clergy from
the role of teaching and educational improvements such as the neglected
education of women, founding a woman-only committee to provide guidance and
direction. Elementary education for all people of both sexes. As well as
labour reform and union ownership of empty factories not in use.

A large part of the population became actively involved in public affairs.

The upper aristocratic class composing the nation state had left many
local workers and women disenfranchised from accessing political reform.
Similar anarchic ideas influenced or independently emerged in many other
populations such as in the states of China, Germany, Switzerland, Belgium,
and Russia.

The Commune began plans to eliminate the state in preference of a

network of local negotiated agreements.

The nation state implies power from the centre outward, imposition,
the anarchists wanted actual people in communities to constitute their own

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authoritative jurisdiction, or popular sovereignty, with elected delegates
responsible and in touch with their community, with the ability to enter and
exit federal arrangements.

The anarchist hoped to improve living conditions and achieve the

emancipation of the labour force, and integration or disintegration of the
wealthy extravagant urban upper-class, by calling for the abolition of the
de facto national state.

France, the birthplace of democracy reacted toward the Paris Commune

by executing 30,000 anarchists.

The defeat left the movement bitter. Anarchists, perhaps attracting

extreme people, then began to advocate extreme acts, random bombings of
state institutions became the means by which to begin the anarchist
revolution. This revolution next resurfaces in Russia at the turn of this
century. Leo Tolstoy wrote a treaties on Christian Anarchism and Mickael
Bakunin, a contemporary and acquaintance of Lenin and Trotsky advocated
anarchism and revolution as the only viable means of overthrowing the rich
propertied capitalists who endorsed and composed the state and the state
interest.

The Russian Revolution

Anarchism had its greatest influence in Russia with numerous groups

involved in the revolutionary movement both before and during 1917.

Revolution today seems extreme in any context but at that time

revolution was a response as pragmatic as it was rooted in the experience of
the Paris Commune as the only way to overthrow those who were then guarding
wealth and power. It was the survivors of the Paris Commune massacre who
first strongly advocated random acts of violence toward state institutions
as an anarchist policy, in order to spark the revolution. This was the idea
that urged an anarchist to take a shot at Prince Leopold on the streets of
Sarijavo and begin the first World War.

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The Economics of Kropotkin. The Conquest of Bread.

Economics should be approached from the standpoint of consumption--of

human needs. The needs of mankind should govern production, and the means of
satisfying them with the least possible waste of human energy. According to
Kropotkin, personal property should be abolished, the wage system, cash and
credit discarded, and to the extent possible, all goods and services should
be provided free of charge to all. Goods available in abundance should be
available without limit; those in short supply should be rationed. He
envisions a decentralized communist economics to oversee production and
distribution of necessities, in all their variety, not on the basis of
position or productivity, but need, in a free and anarchist society.

Many commentators dismiss anarchism as utopian, formless, primitive,

or otherwise incompatible with the realities of a complex society.
Anarchists answer back that at every stage of history society should
dismantle those forms of authority and oppression that have survived from an
era when they might have been justified in terms of the need for security or
survival or economic development, but that now contribute to -- rather than
alleviate -- material and cultural deficit.

The Republic of Socialism will be the government of industry

administered on behalf of the whole community, providing economic freedom
for all, a true democracy.

Bakunin, 1914.

Bakunin offered a critique of capitalism, in which authority and

economic inequality went hand in hand, and a critique state socialism,
(Marx) which was said to be one sided in its concentration on economic
factors while grossly underestimating the dangers of social authority. Mark
was centralist. Bakunin opposed centralism with federalism.

Bakunin believed that representative democracy, or parliamentary

democracy, had found a way of gaining legitimacy through the illusion that
some how the voters were in charge of running the system. The reality, he
posits, is that the capitalist class is in permanent control. So long as the

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great mass of the population has to sell its labour power in order to
survive, there can not be democratic government. So long as people are
economically exploited by capitalism and there are gross inequalities of
wealth, there can not be real democracy. Economic facts are much stronger
than political rights. No one can govern for the people in their interests.
Only personal and direct control over our own lives will ensure that justice
and freedom will prevail. To abdicate direct control is to deny freedom. To
grant political sovereignty to others, whether under the mantle of
democracy, republicanism, the people's state, or whatever, is to give others
control and therefore domination over our lives.

Work, the contribution of one's labour for the creation of wealth,

forms the basis of political rights in the Bakunin's proposed anarchist
society. Those who live by exploiting others do not deserve political
rights. Others, who steal, violate voluntary agreements within and by
society, inflict bodily harm etc. can expect to be punished by the laws
which have been created by that society. The condemned criminal, on the
other hand, can escape punishment by society by removing him/herself from
society and the benefits it confers. Society can also expel the criminal if
it so wishes. Basically though, Bakunin sets great store on the power of
enlightened public opinion to minimize anti-social activity. Why does it
seem almost like Bakunin is describing various solutions to chat room
liability here?

Anarcho-syndicalists

Anarchosyndicalists sought, even under capitalism, to create "free

associations of free producers" that would engage in militant struggle and
prepare to take over the organization of production on a democratic basis.
These associations would serve as "a practical school of anarchism." If
private ownership of the means of production is, merely a form of "theft"
and "the exploitation of the weak by the strong," control of production by a
state bureaucracy, according to Bakunin, "no matter how benevolent its
intentions, does not create the conditions under which labour, manual and
intellectual, can become the highest want in life. Both, then, must be
overcome."

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Leo Tolstoy, The Slavery of Out Times, 1900.

Leo Tolstoy advocated a form of state organization around the ideas of

a Christian Anarchism. He demanded the abolition of taxes, land ownership,
and property, as a rejection of the wage system identified as a form of
slavery, in order to free the bulk of human life from the laws maintaining
serfdom and capitalism.

The Revolution Continues

After successfully fighting for the Russian revolution, the anarchists

were expelled or executed by order of the newly formed and highly
centralized communist state.

The survivors and ideas next resurface in Spain in the 1930's and have
prolific advocates as notable feminist Emma Goldman. It was the anarchists
who first began the fight against fascism on the soil of Spain where they
were defeated by the Italian backed Spanish Fascist Army of which Hitler was
such a great admirer. There are still independent sovereignty associations
in Spain today.

Anarchism, although defeated in every revolution, again re-emerges in

the form of a psuedo-hip counter culture revolution in Americans during the
1960's, with writers such as Martin Buber, and Noam Chomsky. However, by
this time, the anarchist campaign to destroy the state by bombing random
state targets and killing innocent victims, as espoused since the Free Paris
Commune, created a big black stain that deformed any serious political
discussion attempting to use the lexicon of anarchists today. Public
sentiment similar to the vehemence of our democratic public toward the likes
of Timothy McVie demonstrates how easily terrorism attracts hate. Western
liberal democracies and eastern communist states alike black listed
anarchist political ideas, and advocates, while smearing anarchist concepts
beyond recognition. By the 1920's anarchy was mostly discredited and devoid
of its political sensibilities and used as it is today, as a term of
disparagement. A term representing the tyranny of the strong over the weak,
which is exactly what the inferior militant anarchists claimed they were
opposing by calling for the destruction of the nation state. It seems that
anarchism was so feared by nationalist, and effectively repressed by public

20
opinion, that the nationalists were able to erase and malign the very word
connected with even the concept of a stateless society.

Anarchy Conclusion

Today paradoxically, federalism is a very popular form of political

organization. In Canada, for example, some provinces would like to see more
decentralized federalism or other forms of sovereignty association. Free
trade zones and the elimination of borders are some of the goals of modern
investment treaties. The MAI global trend demonstrates an unconscious use of
anarchist thought as applied to finance and the international arena,
although it is to benefit that other abstract state creation, the
international corporation, rather than local unions. International law
concepts of sovereignty are used as a basis for the relations between
states. It is not a coincidence that democratic policy makers adopt
anarchist ideas like free trade and sovereignty ideas, it is as if the
pragmatic solutions offered fit well with reality, with what works well, and
so anarchism cannot be ignored, no matter how vilified because it is founded
in pragmatism.

Anarchism stands for a social order based on the free grouping of

individuals for the purpose of producing real social wealth; an order that
will guarantee to every human being free access to the earth and full
enjoyment of the necessities of life, according to individual desires,
tastes, and inclinations.

Anarchism, the name given to a principle or theory of life and conduct

under which society is conceived without government - harmony in such a
society being obtained, not by submission to law, or by obedience to any
authority, but by free agreements concluded between the various groups,
territorial and professional, freely constituted for the sake of production
and consumption, as also for the satisfaction of the infinite variety of
needs and aspirations of a civilized being.

As to their economical conceptions, the anarchists, in common with all

socialists, of who they constitute the left wing, maintain that the now
prevailing system of private ownership in land, and our capitalist
production for the sake of profits, represent a monopoly which runs against

21
both the principles of justice and the dictates of utility. They are the
main obstacle which prevents the successes of modern techniques from being
brought into the service of all, so as to produce general well-being. True
progress lies in the direction of decentralization, both territorial and
functional, in the development of the spirit of local and personal
initiative, and of free federation of autonomous sovereign groups.

Political organization should be the expressions of individual and

group opinions, not directing centres which control people. Balanced rights
of self-determination should be instituted, with the freedom to associate or
not with larger political bodies. Anarchy is based upon the free federation
of participants in order to maximize individual and collective well-being.
The only end for which society is warranted in infringing the liberty of
action of any individual is self protection. Power should be exercised to
prevent the individual from doing harm to others, but that is the only part
of his conduct for which he should be answerable to society. In every other
way we should have freedom.

Democratic ideology sustains the rule of law, strives for equality,

and hopes to ensure that each individual is protected from the abuse of
another, it is used to justify authority to protect legal and human rights.
It gives people equal rights under the law. Anarchy on the other hand, gives
people the power to decide. Democracy limits that power at the point it
interferes with the power of others to decide. It seems to me of all the
ideologies that blend best together, Democratic Anarchism seems to best
match the qualities and ideological concerns of the internet.

Cryptography

It is no mistake that libertarian anarchists are attracted to the

decentralized net. A place where authority has taken a back seat to
individual choice, where coercive jurisdiction devices are circumvented by
technology. The internet presents another opportunity for anarchy to raise
itself from up off the dust where it has landed laid low since the beginning
of this century.
Legislative limits on the use of cryptography place limits on the
authority granted to individual members in the community by the nation

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state. What kind of paternalism allows the nation state to decide the
limitations or autonomy of people?

France and Sweden have their own language Windows systems. These
operating systems have been built without any cryptography capabilities, to
reflect local laws, so if software is developed that requires cryptography,
these users are unable to use it unless they copy and install an English
Windows version including the cryptography technology. Businesses that use
windows to encrypt legal secure documents will be unable to do business
within the independent jurisdictions that have not conformed to a single
global standard operating system, or in this case an incompatibility drawn
between technology of different languages.

Privacy and Individualism

It could be argued that privacy is an aspect of individualism.

Individualism was created beside the printing press and western libertarian
thought to limit excessive state authority, in this manner it is an
abstraction. Privacy goes one step further. Privacy can be defined as the
ability to be left alone on demand, but it requires resources, the wealth
and luxury to own a place to be left alone within. Certain aspects of
privacy are very attractive. It provides the space for reflection and soul-
searching, inlooking, that helps develop individualism. Other aspects are
more sinister, as privacy can be used as a vehicle for crime.

Absolute privacy is an illusion created from the abstract illusion of

individualism. However, "expectations of privacy" are not illusory. This
relative concept is guaranteed by the Charter, for example, in rights to be
free from reasonable search and seizure.

Pre 18th Century traditional small human communities have never

included individual privacy rights as a dominate issue. The individual was
always a part of a group and rarely alone. In our western society the
opposite can be said to be true, the western individual has personal rights
and not just group rights. Living in modern urban societies there a many
people living alone. The rule of law itself is formulated in this western
tradition with the implicit acceptance of individualism through Dicey's
famous reformulation such as "Equal treatment under the law." The concept of

23
the individual perhaps rests within the traditional power structures of
western monarchy, with the King as the first individual. With the advent of
the printing press and Guttenberg's mass production of typography, many more
voices sprang to life as individuals created what today can be called the
cult of personality. In this context, historically, the emphasis on
individualism was an important counter point to group or national conformity
pressures. It seems to me that acceptance of individualism leads to privacy
concepts which are absent in historical group dominated social structures.
Many libertarians want absolute privacy on demand. However, the human
experience itself suggests that privacy is almost a new phenomena in our
social settings. It certainly doesn’t seem to be rooted in any sort of
natural law or necessity, although it is implicit in the rule of law as a
recognition of individual rights and obligations.

Concepts of privacy in today's society are limited by expectation

concepts, and so issues of privacy in law are more often than not resolved
with the reasonable expectation of privacy test. I would suggest that this
solution is a feasible working model from which to judge these issues as
they arise in context.

Internet privacy is a product of an ISP agreement. Consumer activity

can be totally tracked and recorded, nothing is potentially private from
your ISP provider. The only expectation of privacy on-line would have to
come from an agreement with the ISP to not investigate or log your visits.

ISP Liability issues

Various forms of harassment, liable, fraud, and other "informational"

torts and crimes may be committed on the Internet. Copyright infringement
abounds on the Internet. When legal problems arise on-line, who should bear
the cost of liability? Should liability lie purely with the individual or
entity whose action, or failure to act, was directly related to the event --
the so-called "bad actor?" Should it lie with individuals, organizations, or
institutions that contributed to the injury or simply provided the "bad
actor" access to the Internet?

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 In many cases, the original "bad actor" potentially at fault is
anonymous, mobile and/or judgement proof. It is the ISP that while perhaps
merely a conduit, has the deepest pockets from which to achieve judgement.

ISP Liability creates a distinction between being in control of the

material, or a publisher, and being the technological means that made the
publication possible, merely a conduit. If the provider had control over the
offensive or infringing material they can be held liable as the publisher of
the material. If however, they do not have control over the content, and are
merely providing the forum for someone else to publish infringing material,
the ISP is not likely to be held accountable, or at least held to a lower
liability standard, and is merely a conduit of the information.

Anarchy in a Digital Age

The internet takes regulation in many traditional spheres back to

square one, and forces us to ask, should we regulate at all? If one cannot
enforce actions against individual violators for copyright infringement or
liable, should we spend any money legislating against it in the first place?

Music and movies can be copied and redistributed for free over the
internet, any piece of digital information can be electronically reproduced
and easily distributed, this is anarchy. One could download any book, any
program, any information for free from the net. In a multi-jurisdictional
global space, how much can domestic law control information flow? This
question is probably answered by counting how much money will be lost by
intellectual property owners and their ability to effectively lobby. The
state will have to balance the unlimited free exchange of information on the
one hand, against the economic incentive, gain or loss, of the rights holder
on the other. Information being exchanged for free, from one not-for-profit
private individual to another, undermines the economy, the very wage
incentive system which keeps industry rolling, it remains on the periphery
of permissible legal behaviour.

Some espouse that the economy or the internet should be free of

regulation to promote its maximum growth. Should the free exchange of
information be limited by regulation as well? Should there be copyright laws
on information, if information can be so easily copied? Should people have

25
economic ownership rights in intellectual property? Who will enforce these
rights against judgement-proof abusers?

Traditionally, to support economic theories, we protect anything that

can be sold, or that provides profit, including names or a symbol. In an
electric world of simultaneous users, regulating can become very burdensome,
yet just because something is difficult does not mean the task should not be
undertaken. Another area of law built up only to protect the economic well
being of businesses is trade-mark law.

Trade Marks and Domain Name Issues

The sine qua non of Trade Marks and Trade Names is distinctiveness
which can be expressed in symbol or language. TM's and TN's must be used in
association with wares or services and be so associated with the wares or
services that notice of the association between the mark or name is given at
the time of transfer of property, service or product. Permitted TM's and
TN's are limited only by precedent of distinctiveness. In Canada, to
register a TM or TN requires that the word or symbol be,

1. Not primarily a name or surname.

2. Not clearly descriptive or deceptively misdescriptive of the
character/quality/or place of origin.
3. Not the name of the generic wares or services in any language.
4. Not be confusing with an existing registered trademark or a
prohibited mark protected for public authority, such as the Post
Office or Canadian Olympic Assc.

The Trade-Marks Act grants the right of exclusive use to the holder of
the trademark as against the world, or as far as the jurisdiction, domestic
and international, will extend to provide a remedy for direct, or deemed
infringements of the same or similar marks. The Trade-Marks Act also
protects against any depreciation of goodwill toward a product or service
resulting from mark infringement. Beyond the Trade-Marks Act, historically,
the common law tort of "passing off" has been used to protect a
distinguishing mark. "Passing off" provides a remedy against using a TM or
TN in association with wares or services that is false or misleading to the
public. For example, making false statements to discredit a competitor, or

26
directing attention to wares in such a way as to cause confusion, or simply
passing off, the quick switch, a misrepresentation of the identity of the
seller.

What is clear from the case law is that TM's and TN's will only be
protected against someone using the mark in association with wares or
services, as well they must be using the alleged infringing mark as a TM or
TN in the normal course of trade. In ideological jargon the law protects a
symbol or word to promote capitalism, but only against other capitalists,
those endeavouring to promote the rational expansion of wealth and engaged
in trade to do so.

What seems unclear to me is the application of these principles to

domain name issues. Obviously the domain name forum is an international
platform and the Canadian Trade-Marks law may not represent the only ideas
in trade mark protection, however Canadian law would set precedent that a
distinction can be drawn between two classes of people, those using marks in
the normal course of trade and those who are not. In this context analyzing
domain name conflicts would suggest that trade marks can be enforced within
Canadian jurisdictions against competing businesses but not against not-in-
business private individuals not using the mark in association with wares or
services. However, whether this distinction exists at the international
level is debatable. Current Domain Name Contracts include a mandatory
arbitration clause that only gives conditional use of an IP address.

Democracy and Domain Names

The debate in the global arena becomes a forum for diversified debate
by almost anyone. When so many people traditionally denied a voice are able
to communicate with the aid of new technology, basic assumptions tend to be
re-evaluated. In the context of trade marks law and related domain name
issues, regular people can begin to question whether anyone should have a
monopoly over a word in the form of an IP address? It must be asked if our
law should be promoting corporate ownership over language typography as
related to the internet at all.

There is a distinction to be drawn between language used in an organic

and oral form and the products made from language with the use of innovative

27
technology such as typography, the printing press, and the internet. If we
are equal, as democracy suggests, no single sovereign can claim better
entitlement over property rights, ownership of language, or the specific use
of words. In this framework, who can presume to create a single source which
will grant undisputed exclusive rights over the use of words in the form of
IP addresses or online trade marks, for the benefit of commercial players?

The internet as a forum for the expression of the mind presents

boundless IP addresses limited only by creative language choice, however its
expression is restricted within a sphere of core "common" words. Policies
requiring forced arbitration of disputed domain names, and legislation
supporting corporate trade marks in the regulation of IP addresses, question
the ownership of printed language, or even oral language, as represented in
a soundbyte. Will words be subject to ownership if used for commercially
reasonable economic means and ends? Is it fair for business to own the
lexicon of typography, in association with wares or services, or the
distinguishing guise of an IP address, at all, or at the expense of a
private not-in-business individual? Domain name distinctiveness may create
an infinite medium of expression, however in typography many words are
common and belong to a frequently used core vocabulary. Will each of these
common words be one day owned and exclusively protected in the domain name
or trade mark realm limited only by oppositions and exceptions such as in
the Trade-Marks Act or WIPO guidelines? If that becomes the case, lawyers
will never run out of business in Trade-Mark litigation. They will become
participants in ownership and property disputes within the medium of
language, potentially fighting for the protection or use of each and every
word in any language.

The End

The internet poses many questions to regulators. In a direct-

democratic forum, who should make decisions? What interests and whose
benefit will eventually be best protected? Comparing different ideological
ideals can serve to demonstrate general answers to some complex questions.
If regulation carries the burden to be the guide of technology, and
technology which once invented then impacts on the shape of our social
institutions and structures, what will those policies embody?

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 This paper attempted to investigate the history of two competing
political and economic ideologies, capitalism and anarchy, as two extreme
counter points to assess what those interests are and who benefits in
relation to internet service provider liability and other ideological
general controlling features. Ironically, I think the historical
representations bring out the opposite of what might seem obvious. Anarchism
ideology begins by establishing rules to monitor and govern our distribution
economy in the hopes of creating material equality and autonomy. Free-market
capitalistism suggests that rules governing economic corporate entities
should be minimal, if any at all, at the same time technology is creating a
more conforming single global market, the rules of which they want "laizze
faire." This centralist representation with power in control of large
international private profit-oriented organizations working to benefit
shareholders, excludes democratic and anarchist ideological world view. A
blending and compromise between two extremes is often the better view.

ANARCHY
Ever reviled, accursed, ne'er understood,
Thou art the grisly terror of our age.
"Wreck of all order," cry the multitude,
"Art thou, and war and murder's endless rage."
O, let them cry. To them that ne'er have striven
The truth that lies behind a word to find,
To them the word's right meaning was not given.
They shall continue blind among the blind.
But thou, O word, so clear, so strong, so pure,
Thou sayest all which I for goal have taken.
I give thee to the future! Thine secure
When each at least unto himself shall waken.
Comes it in sunshine? In the tempest's thrill?
I cannot tell -- but it the earth shall see!
I am an Anarchist! Wherefore I will
Not rule, and also ruled I will not be!
- John Henry Mackay.

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Bibliography

Barber, William, 1967. A History of Economic Thought.

Chomsky, Noam 1970. Notes on Anarchism.

Innis, Harold. 1951. The Bias of Communication.

McLuhan, Marshall, 1964. Understanding Media.

Quebec Succession Reference, 1998.

http://flag.blackened.net/liberty/ A link to various condensed articles on Anarchism.

All further authors and works are referred to in the body.

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