Jack Goldsmith, a Harvard Law professor who wrote Who Controls the Internet: Illusions of a Borderless World with Tim Wu, is giving a lunchtime talk at the Berkman Center. He comes from studying multi-jurisdictional conflicts. [Note: All quotes are approximate at best. I’m paraphrasing throughout.] The book is a history of why the vision of the Internet as something apart from meatspace governments didn’t work out. The book makes three claims, he says:

1. Nations can do a great deal to regulate Internet transactions within their borders. States can do a lot more than people thought.

2. The Internet is becoming bordered by geography, i.e., it’s becoming balkanized. Some of the borders come from states applying their laws. But a lot is coming from bottom up pressures, i.e., Internet consumer demand. “This is most obviously true with respect to language.” A great deal of the information that people want is about local stuff. Geographic identity technology lets applications know where Internet users are in real space; this has started not because government regulators want it but because advertisers do.

3. This emerging bordered Internet is not a terrible thing. “Obviously, in most respects it’s a bad thing in China,” although the fact that the Chinese Internet is in Chinese is a good thing for the Chinese (Jack says). The bordered Internet is good for the same reasons federalism is a good thing: You can maximize people’s preferences if you allow them to have law at the local level. E.g., France forbids eBay from selling Nazi goods. Among democraciess, the differences in free speech are legitimate. A bordered Internet allows the French to use its own free speech laws, and the alternative would be for the US to impose it’s view of free speech on France or vice versa.

Self-governing Internet communities can’t flourish without government, he says. E.g., eBay relies on the government, including for fraud control. eBay employess 800-900 fulltime people who work closely with state and local prosecutors to minimize fraud. Without government assistance, eBay would be overrun by fraud. Also: Contract enforcement, postal services, etc. Government sponsored public goods are essential for the fourishing of Internet communities.

One of the lessons of the book is, Jack says, that geography matters and government matters. “The experience of the Internet over the past 10 years is an antidote to the breathless claims of globalization.”

Q: How about the segmentation of the Internet outside of democracies?
A: China’s deprivation of free speech is a bad thing. But the bordered Internet is good for the Chinese people in the use of the Chinese language and by the relaxed rules on IP. But the bordered Net argument doesn’t work as well where citizens don’t have control over their government.

Q: Corporate response to this?
A: I have much less of a problem with Google than Yahoo. As far as I can tell, the Chinese people are better off because Google is there. As far as I can tell, no one is made worse off by Google being there. Contrast that with what I think Yahoo is and was doing: To the extent to which a corporation’s making money requires turning people over for engaging in political speech…But it’s also a fault of the US government.

Q: So you must think the Global Online Freedom Act doesn’t have much chance?
A: I haven’t followed it since the hearings, but I don’t think there’s any chance of it passing because it would mean that US companies can’t do business in China.

Q: What about issues that can’t be controlled by individual governments, e.g., the Internet naming system?
A: Actually, that’s an example of something controlled successfully by a single country. Originally people thought ICANN was going to provide private control of the Internet. But it’s firmly under the control of governments. US control of it is not sustainable.

Q: [me] You’ve said a bordered Internet has advantages. The examples of natural clustering — around languages, e.g. — are not controversial. But the ones where it’s enforced by law are more so — e.g., French laws about eBay sales. If it’s goods for states to have this control, is it an implication that it’d be better if we altered the Internet infrastructure to put in more info to enable more local control, e.g., a copyright bit, author bit, adults-only bit, etc.A: I haven’t thought this much. But I suppose if you could increase the degree of control within democracies, that might be an implication. But you’d have to weigh that against the harm done within totalitarian states. But the bordered Internet is a metaphor. Most nations don’t care about most of what goes over the Internet. We’re talking about the small percentage of neutral between different regulations in demorcacy…or I don’t even want to go that far. I’d have to think about it in a discrete context. I guess I don’t have an answer to this question. [Hard to capture this. Jack was thinking out loud and an open and frank way. Nice to see.]

A: This book isn’t optimistic about what public international law can accomplish. Treaties aren’t happening. There are lots of things can’t control very well: gambling, pornography. Every new tech has a shock on the government. State authority persists. The state as an institution will survive this revolution because the revolution needs the state. In fact, every communication revolution has strengthened the state.

Q: Amara’s law says that first we overestimate the consequences of a new technology and then we ignore the long time consequences. There’s a possibility that we’ll start seeing each other around the globe as being more like one another than not. It seems to me inevitable that we’re becoming more alike. Our interests are necessarily merging if we’re to survive. That’s my normative statement.
A: Reinhold Niebuhr said that knowledge of difference increases hatred. Every communications revolution has said what you say, but it hasn’t worked out. It’s impossible to tell which way it’s going. Rorty claims that as soon as we see people as humans not as foreigners, we’ll cease to have as much conflict. That’s the hope of globalization. But I think the opposite is just as possible. I don’t know which force is more powerful and I don’t think we can say systematically. [Tags: jack_goldsmith globalization tim_wu net_neutrality]

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