Durability of Law and the simply political character of voluntary commitments

January 14, 2016

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Durability of Law and the simply political character of voluntary commitments

Jonas Abs dropped us a line a few days ago, he wrote up a a post about his lightening-talk from BSidesHH2015.

Lightening Talk BSides Hamburg 2015 - Jonas Abs

“Durability of Law and the simply political character of voluntary commitments”

Our life in Germany and Europe is presently accompanied by three formative words: crisis, nervousness and pressure in all social and national relationships. As a consequence of this view on our time the internet, as a reality stamping second or primary world, is also a part of the crisis, nervousness and pressure. The mass of actors and users in the digital world would like to have a net, which is the most liberal and most efficient information- and communication system in the world. These fundamental principles formed a structure of aversion against all national regulations and against all concepts of national forced responsibility of actors. In consequence this aversion against a concept of “one society one law” undermine the inherent order of fundamental rights and of constituted societies. For example the European protestors against Acta, an international treaty concerning property rights, left behind an internet, which is inadequate regulated for intellectual properties. So these activists and of course commercial interests prevent a governmental entrance to this net-world. They have done it with the reference to be a stateless space, the truly freedom and opportunity of live against the sublimate world- a new live-philosophy or ‘ars vivendi’ for creativity and dynamic against the materialism, rationalism and intellectualism of nations. The freedom needs a legal coordination of all individual wills. A freedom without legal consequences cannot exist and would become the law of the jungle.

But instead of official regulations and law the companies and users confirm a system of self-engagement and voluntary commitments not to hurt intellectual property rights. This optimistic conviction of a self-regulated internet influences the societies and the states to rethink their constitutional basics and creates a dangerous expectation of an uncommitted order, which can guarantee its liberal fundament. But are freedom and fundamental rights possible without an implementation of law? Of course not. The primitive state of the internet is the antipode to our occidental experiences of contractualism. It is a new thing to demonstrate to deny being a legal subject and it was a fatal decision to fall back and not to sign the acta-treaty.

At the moment the voluntary commitment seems to be accepted as an equivalent to the law and the best opportunity to keep the internet free and liberal. But many actors and of course political actors overrate the durability of voluntary commitments and disrate the stability of law to a customer service. They fall for the line of a self-engaged anarchy. The legal vacuum or the regulation gap on the internet became a challenge for our concept of human dignity. The missing jurisdiction in case of fundamental-rights-violations means the loss of dignity, because the concept of dignity needs the individual control about own data. This control is oppressed by the misuse of informational power and by leisure activities of teen-aged or political hackers.

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Our legal system already proved its durability for example in case of e-commerce. The right to try on clothes and to exchange them is not a service of the e-seller, but the effectiveness of the analogue law. The disadvantages of self-engagement and voluntary engagements are their randomness and political dependence. Our constitution knows the term of “Drittwirkung” /effect on third party of fundamental rights. The Advantages of Information and Power of a private person or company is part of an economic and social fabric, which means a strange control and steering to the normal user. “Drittwirkung” means in this sense a relationship like the relationship between the individual and the state. “Drittwirkung” qualifies the fundamental rights to a system of values, which binds all social relations, that have a strong difference in power.

But in the current arrangement of the internet the simply fragmentary protection of constitutional rights means a unbounded and wild polycracy, a juxtaposition of different dictatorships. Supporting this arrangement means supporting the end of the occidental law-tradition and supporting the end of the common democracy, because the trust in law and its arbitration between all parties is the basic of democracy. The jurisdiction gap on the internet will push the common mistrust in state-power and will increase the feeling of crisis, nervousness and pressure, so that wie cannot be satisfied with a good will of actors, we need a reset and a new digital law, otherwise we will get in 2015 an angry mass of controlled and unprotected people, who will express themselves in political-extremistic parties, which will promise protection. It is a simple addition of aversions: Aversions against regulations on the internet- as a steering part of our live- and aversion against conflicts in society- as the missing ability and willingness to endure conflicts . If you ad it, you will get a common decision for radical solutions.

The EU and the member-states have to find solutions. At first the EU has to start a digital autonomy for saving the sovereignty of its member-states, because the protection of properties and containment of (data-) capitalism is an old responsibility of states.

Therefore we need a strong dialog of experts- politicians, institutions, and IT-experts (hackers), because at the moment Brussels needs ideas to close regulation-gaps and to save our rights against an international data-market, otherwise olive oil-jugs will stay more important than our right. We don’t need a voluntary commitment we need a revitalisation and digitalisation of our social contract.