Marcelo Thompson

1) ‘Keep the Core Neutral’!

Professor Zittrain asks if we should keep the ‘core’ neutral. And perhaps his ‘coeur’ believes we should not.

Please correct me if I am wrong, but his ingenious Z-Theory seems to point to some choices that we need to make if we want to have a generative Internet. Perhaps we need to supersede the end-to-end principle to some extent, evolve towards some adequate forms of identification, pick between more generativity for the Internet and more responsibility for those who increasingly suck generativity out of the end points. We perhaps need to make some choices so as to stop the reverse big bang, the lugubrious black hole that the net increasingly turns to be. That is, Professor Zittrain seems to believe that some choices are possible and wishful thinking to preserve a generative Internet. Choice-making is antithetical to neutrality. So, why should it be different with regard to the case at hand?

IMHO, the petition Professor Zittrain was asked to sign (with due respect to its reputable subscribers) seems to be part of a growing and all too wrong consensus that, to protect the end points of the Internet, we need a neutral core, coupled with other several layers of neutrality. According to this consensus, tied to a neutral domain names policy we need a neutral protocols layer that treats all packs of bits as equals before the net. On the top of it, we need a neutral identity layer that does not say too much on how to identify individuals; we need a neutral search layer that prevents filtering mechanisms from making (any) choices with regard to what we can find in the net; we need neutral electronic documents laws that give legal value to any kinds of documents, whatever their (good or bad) technologies are; we need neutral intellectual property laws, that equally protect intellectual creations, irrespectively of the means they are expressed in. Wait a minute! — perhaps neutrality in this last case is ‘bad’. Let us not forget all the promises of the non-scarce, non-rivalrous digital means! After all, here we can sell wine without bottles – and the law should not be neutral with regard to this. Yes, we need laws that make us fulfil all the promises of this new and special intellectual environment!

Is neutrality ever ‘good’?

2) All we need is Love

No, I am not being kitschy. Let me explain what I mean with this, and what it has to do with being neutral or not with regard to the… core.

More than 10 years ago, Zenon Bańkowski, Edinburgh Law School Professor of Legal Theory, published an extraordinary article in the first number of the Edinburgh Law Review, entitled “Law, Love and Computers“. In that article, which was his inaugural lecture as a chair professor in Edinburgh, Professor Bańkowski gave an example which may sound impressively current today.

“My endeavours have always been to try to see how one can lead a good life; to be able to encounter people and deal with them honestly. This has led me to be fascinated and captured by rules. My intellectual and personal life has been concerned with trying to escape the net of rules. But, as Iris Murdoch shows in Under the Net, that attempt can lead to disaster. The trick is to take a practically reasonable attitude to rules, to be able to step in and out of the law without throwing it away.

I can illustrate the problem by a story. When I lived in Italy I was struck by the seeming chaos on the roads. But drivers did not go out to kill pedestrians at, for example, pedestrian crossing or traffic lights. They never stopped but rather tried, with more or less success, to weave around the pedestrians who would be scared out of their wits. I then visited Germany where I was struck by how different it seemed. How at controlled pedestrian crossings, cars, when signalled to stop, always did so. If there was a green light for the pedestrian, one could boldly cross without looking out for cars. One could do something not possible in Italy, cross the road and not fear the cars. You knew they would stop. However, if you crossed the road on the red, you were dead! You would not be seen because you were crossing the road contrary to the rules. You should not be there, therefore you were not there”.

Departing from this example, Professor Bańkowski goes on to explain his theory that “love” is what bridges the gap between the insensitive universality of the Rule of Law, and the unbridled particularity of Morals. It is love that joins marriage and passion, heteronomy and autonomy, democracy and individuality; it is love that promotes “encounter”, and prevents life in society from becoming a strict performance of preordained formulae captured by computer systems – before which all of us would be invisible and inanimate actors of an unchangeable play. To live lawfully is to live the law with love; it is to reconcile different reasons for action – to make new choices on the choices that were made for us. In this world of reciprocity, in this inherently and highly valuable world, there should be no place for ‘neutrality’.

3) Shared Spaces, Self-Regulation and Love

In Professor Bańkowski’s example, if Germany represents the Law, Italy represents Love (or, rather, passion!). Now it has become increasingly frequent that people bring the Dutch example about – as a Dutch engineer has pioneered a “shared space” model, which Malte discusses in two insightful posts, one on “regulation by honking” and the other on Oxford’s further regulatory intentions for its traffic system. I agree that the “shared space” model can indeed be an interesting paradigm for the Net, to the extent that it optimizes coordination; that it establishes some basic heteronomous standards before deferring to self-regulation.

But what the shared space model really does is to create a middle-way between two perhaps not very efficient systems: one in which every choice is universally and mechanically predetermined by the law; and the other in which the potentially insensitive choices self-contained in the law are unlimitedly subverted by the particularities of every single situation. It is a model of regulation for self-regulation. It is a framework… for love?

4) Keep ‘Love’ in the ‘Coeur’!

A system in which no choices are made by the law — a neutral system, is one which allows for bad choices to be made here and there. A system which holds no particular conception of the ‘good’, which is all the doctrine of neutrality is about, is a system that ignores any existing inclinations towards the ‘bad’.

Some systems intend to be neutral… which are not. Wikipedia’s ‘Neutral Point of View’ holds ‘objectivity’ and pursuit of the ‘truth’ as inherently good values. Those who pursue the truth obviously recognize the value of ‘knowledge’. Knowledge is ‘good’. The right to knowledge is, according to John Finnis, the paramount example of a natural right. It flows from our practical reasoning, and any attempts to deny it are self-defeating — for those who deny the value of knowledge cannot do it without pursuing, themselves, the value of knowledge. The neutral point of view, thus, is not neutral at all. The descriptive, objective nature of an entry in the Wikipedia is transformed into a deeply normative venture. The ‘is’ turns to be an ‘ought’. And this is ‘right’.

And so it should be. As Joseph Raz says in his Engaging Reason, “Aspects of the world are valuable. That constitutes reasons for action”. Doctrines of neutral concern, whatever their expressions are, ignore that, for the very pursuit of manifold, diversified, plural, autonomous reasons for action, some basic choices must be made.

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That ICANN may not be the ideal forum for making these choices with regard to the Net is one thing; that no choices should be made at all, that the ‘core’ should be kept neutral is something completely different.

Hence, with regard to the petition Professor Zittrain was asked to sign, I ask my friends from Brazil who signed it: would you defend in Brazil the registration of a domain name with racist content, which rendered apology to the use of drugs, or which incited child pornography? Why so should we allow it in global scale?

To promote the ‘encounter’ between the ‘rule of law’ and ‘morals’ we must first create spaces for the pursuit of the good life in these different but complimentary universes. For the former as for the latter we need to keep ‘love’ in the ‘coeur’.