Law as a Network Standard

Dan L. Burk
Oppenheimer, Wolff & Donnelly Professor
University of Minnesota Law School

Abstract

To a greater extent than any previous communications medium, the Internet facilitates the interconnection of potentially incompatible legal regimes. The movement of information between jurisdictions invites conflicting applications of local regulations over advertising, intellectual property, hate speech, personal data, and other communicative content. Understanding the role of the Internet in this context is crucial to understanding the phenomenon of transborder information exchanges, as the Internet both forms an active conduit for much of this information flow, and provides a case study for understanding information flows outside the specific context of the network.

In this paper, I shall discuss two related models implicated by in the argument for international regulation. I argue that Internet regulation at an international level may be conceived as a standards-setting problem, presenting at a multi-national level the same dangers and benefits of uniformity, competition, and strategic behavior familiar from analyses of technical standards-setting. This approach arises in turn from the conceptualization of law as a product, and from potential for interchanging law and technology as regulatory methods.

Thus the study of interjurisdictional competition, and interjurisdictional conflict occasioned by the Internet leads to a broader result in the equation of law with interoperable technical standards, and a confluence of previously divergent strands of social scholarship. Legal scholars have previously suggested and extensively explored the interchangeability of law and of technological constraints in achieving social policy objectives. Students of technological meaning have long held that technology comprises reified norms. At the same time, law is largely the formal statement of those norms. The normative meanings of these two cultural artifacts interact in a complex relationship, both re-shaping and reinforcing one another. And this conceptualization of law is in some sense the logical endpoint of the economic approach conceiving law as a product: if law is an economic good that competes with similar goods from other producers, so too is law a product that interoperates with similar products from other producers, as well as with other systems of complementary or competing products, even if they take the form of technological standards.

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