academia agriculture art books business models cities commons strategies conferences cooperation copyright law digital commons economics enclosure enclosures environment finance food free culture free software Germany government Great Britain history India international Internet law market culture music ontology open government patents politics public domain science water
Digital Common Law: Moving from Government to Governance
Mon, 06/25/2012 - 16:47
To traditionalists, the idea of self-organized governance may seem visionary at best and wacky at worst. To the rest of us who are witnessing the slow-motion collapse of large, rigid institutions, the appeal of bottom-up, participatory systems of governance is obvious. We need governance institutions that are trustworthy, effective and socially legitimate – descriptions that are not readily applied to many forms of government and policymaking.
For huge segments of the population, it’s an open secret that the social contract is now a rigged game. That's what the Arab Spring, the Indignados in Spain, the Internet protests against the proposed PIPA/SOPA laws, and the Occupy protests were all about. While government suffers from lots of unfair criticism, governments are in fact plagued by political gridlock, legal complexity, bureaucratic limitations, the “pay to play” ethic, and the sheer expense of lobbying and litigating to advance one’s interests. No wonder so many people are disillusioned by the promise of "democracy."
The questions for our time are, Can we develop new institutions that work better and recover some measure of social trust and political legitimacy? Can we forge a new social contract? If government is unlikely to change much, can we move to new forms of governance?
As I see it, the chief challenge is not just to diagnose what’s wrong, but to build working alternatives and new grand narratives to help re-orient our thinking. Given the ubiquity of digital technologies and especially the Internet, I think some of the most attractive answers are going to come from digital spaces. The networked world keenly understands the value of open, participatory networks and the more efficient, socially legitimate outcomes it can produce.
My friend and colleague John Clippinger, a leading tech thinker and entrepreneur, and I recently wrote a short paper suggesting that some sort of re-alignment in governance is inevitable:
As more of life and commerce is mediated by digital technologies and Internet platforms, the tensions between legacy institutions (centralized, hierarchical, control-based) and emergent social practices on open networks (distributed, participatory, emergent) are intensifying. For years, such tensions have been deliberately ignored or finessed – but that approach may no longer be possible. The structural deficiencies of existing online systems are spurring the search for better, more practical approaches to governance, law and policymaking in an age of open networks…..
Clippinger heads up a new tech startup based in Cambridge, Massachusetts, ID3, which convened a workshop in Washington, D.C. a few weeks ago to explore these questions about governance. ID3 has close ties to the MIT Media Lab and to social computing wizard Alex “Sandy” Pentland, an MIT professsor. I spend a fair amount of time these days working with as a policy strategist and writer for this new project.
Its aim is to develop a new vision of software and Internet protocols that would empower users to take charge of their personal information and their digital identities. Individuals ought to be able to protect and share their digital data in utterly trustworthy ways. If the security of data and the identity of people can be reliably established through digital systems, people would be able to take greater advantage of Big Data and enter into new types of market and community relationships. New efficiencies and empowerment would result. People would be more able to coordinate themselves and pursue common interests knowing that neither government nor large corporations would be snooping on them or exploiting them.
Whatever forms of cooperation users may choose -- consumer-driven markets, social collaborations, financial coops, etc. -- they would know that law and technology would reliably back them up and enforce their interests. This would be a departure from many current systems of government-based law, which are often cumbersome, complex, dysfunctional or simply bought off by special interests.
A “network-native” system of law, governance and policymaking would be designed to be transparent, flexible and effective, and therefore trustworthy and legitimate. It would be designed to ascertain and advance the stated collective interests of the community, relying upon large databases of personal information but rigorously protecting its usage. Companies that refused to respect the personal privacy of users by misusing personal data, for example, could be summarily excluded from the value-creating circuits that users form online. By contrast, companies that gained authorized access to consumers' data -- while agreeing to respect their expressed privacy concerns -- could flourish and serve consumers even better.
As a way of introducing this new vision of law, John Clippinger and I wrote a white paper for the workshop entitled, “Working Paper on Trust Frameworks and Self-Governance.” (pdf download) The workshop focused on “developing more effective, legally sound, network-based solutions to digital privacy, identity and security concerns.” The ultimate goal, we write:
is to develop a new network architecture for personal data that will enable new forms of trusted governance, commercial transactions, and social relationships. The envisioned system would seek to leverage the powers of Big Data while empowering users to control how their personal information can be used. By helping devise a more transparent, accountable governance system that is holistic in scope – and only minimally dependent upon legacy institutions of law and policymaking – we hope to nurture a new, network-native form of law that we call digital common law.
By digital common law, we mean a bottom-up, voluntary, user-driven system that establishes context-specific norms for governing a given online community/market.
Centuries ago, the common law emerged from judges making decisions based on customary practice and what worked. Judges were not seen as making law so much as “discovering” the common law. It was seen as reflecting the natural dynamics of human and biophysical nature. It was locally responsive and evolving. The common law recognized that legal principles must change over time as circumstances and social needs change. Common law was not as rigid and unchanging as contemporary statutory law is, nor was it as suspceptible of political capture as legislatures are today.
The point of digital common law is to try to make law more responsive to fast-changing on-the-ground conditions and to the will of voluntary communities. A system of representative law-making established in the 18th Century has proven itself to be terribly slow and ham-handed in the 21st century. Why should this be tolerated when there are attractive alternatives? We increasingly have access to digital tools that can reliably enable collective initiatives, deliberation, rule-making and enforcement (via exclusion or social shaming).
Indeed, there are literally thousands of self-organized communities on the Internet that generate and manage serious economic (and social) wealth without the active support of conventional law, government or corporations. Imagine if such communities could scale, and enter into legally enforceable contracts, and protect the collective interests of their members?
If properly designed and managed, digital common law could help people retain the value that they collectively generate (content, personal data, etc.) and can prevent it from being siphoned off by companies for data-mining or advertising (e.g., Facebook). Instead of being lambs led to the slaughter, they could assert their own sovereignty in the marketplace, forge their own social contracts with institutions, and develop their own enforceable forms of self-governance and digital law. As Clippinger and I note in our paper:
A system [of law] once based on oral, social forms and then later written, institutional forms must move into the digital realm and become algorithmic. That is to say, it makes sense in the digital age for people to use self-learning, data-driven network computing as instruments of law. They can provide a reliable, effective way to identify and represent collective sentiment, and to oversee and enforce such sentiments. The basic principle of digital common law is to use open network systems to formalize mutual accountability and shared intentions. (original emphasis) Distinct communities and/or participants on open networks can invent and define their own operational norms to suit their needs, subject to general public policy mandates. The system can be highly attentive to shifting circumstances and preferences, and make suitable modifications without the impediments that afflict conventional law and policy.
The search for digital structures that can enable new types of consensual governance is still in its early stages. But there is little question in my mind that it holds answers to the kinds of social, economic and political emancipation that so many people are yearning for.