Jurisdiction II: Global Networks/Local Rules
September 11-12, 2000
San Francisco, CA
IT Global Initiatives In Latin America: Is It A Dream?
Research Center on Information Technology
Buenos Aires, Argentina
Just as the rest of Latin American countries, Argentina is receiving
the first rays of this new era or digital revolution. And just as the
rest of Latin America, it is adopting a passive stance, like a person
lying in the sun on the beach, without realizing that the economic
future of the country may depend on the attitude it assumes.
Both USA and the EU are not aware of Latin American society
involvement in the digital era. In many instances, this ignorance leads
to the choosing of an incorrect approach, an approach that does not
allow governments and foreign companies to achieve successful results.
This is why I decided to offer you a general overview of what is
going on in Latin America instead of focusing on one specific subject.
This overview will allow you to get some awareness as regards the issues
connected to jurisdiction, and as to what is going on in "the other"
What Governments Are Not Doing
One of the critical points I want to draw attention to is the lack
of national or regional initiatives in the field of IT. Our main actors,
potential users and consumers still do not seem to realize they have
entered a new era that will transform our lives. Nor do our authorities
and leaders of the private sector.
Governments have an important role to play in this respect. There are
many measures that can and should be taken so as to lead our countries
towards this new society. These measures are of varied types and degrees
of importance, and should be discussed as a whole. But before investing
time and money in the study and implementation of some specific measure
it is essential that we discuss its aim and design the necessary plan.
Without an overall plan, without a strategy, no measure per se
will allow us to achieve the proposed aim.
Let me stress my point: the lack of this type of general initiatives
in the national and regional levels is leading to isolated and
un-coordinated efforts, which means we are addressing in a separate way
issues that are closely connected. Short-term problems prevent
governments to realize the important role they should play in the
development of these types of initiatives.
Business Companies and NGO´S
But I also notice that the private sector, the business companies,
the academic sector and NGO's as well, are drifting astray.
The visible face of digital economy in Latin America are "dot coms".
Confusion is widespread. Everybody talks about electronic commerce and
dot coms, but few people have gone beyond what they read in the papers
about billions and trillions of dollars that will be negotiated in the
future. Everybody talks about portals, but few admit they have never
surfed and do not even know what portals are for. People mistake NASDAQ
for digital economy. NASDAQ rises and falls only add to this confusion.
Owing to the sluggishness of government and of the academic sector in
setting up standards, it is the business companies themselves who
explain the pros and the legal problems that could derive from the use
of new technologies, and they do so at the same time that they try to
sell their products. This, understandably, makes people suspicious.
I said the government has a decisive role to play, but let me add
that the private sector also has to take the initiative. It should try
to direct all new ideas pertaining to electronic commerce towards one
common center. Business companies must join forces in order to set up
common policies that allow them to anticipate those issues, and try to
define their own codes of conduct, while offering alternatives capable
of lessening the effects of a sure state regulation. Portions of their
budgets should be assigned to the building of a future that contemplates
life beyond today or beyond their next sale. Often, people are left with
this sense of inconsistency.
The Academic Sector and the "Campus Syndrome"
The academic sector does not understand the implications of the
digital era. The most noteworthy universities do not carry out research
activities. They are busy building their campuses, while in other parts
of the world they are already asking themselves what to do with them.
Worse yet, they are ignorant of what is going on in the world. Thus they
do not get involved in discussions regarding leading issues.
This is especially noticeable in MBA and postgraduate courses
syllabuses at schools of Law. Those schools, however, are witnessing the
timid appearance of some academic courses that deal with the birth and
development of "dot coms".
Several problems have not been anticipated: those pertaining to the
security, privacy and confidentiality of information, what may become of
the practice of retrieving and using personal data, as well as crucial
topics associated with the Internet and its regulation.
A general debate on these issues is still missing. And these matters
should be given priority in countries such as ours, where the processes
of deregulation and privatization carried out these last years have led
to a great inflow of foreign capital.
The Need for an Interdisciplinary Approach
The idea of convergence is lacking in government, business and
academic sectors. There is no interdisciplinary research. Governments
regard digital revolution as a technological issue. Engineers and
technicians work on their own, designing and developing products in the
belief that they will be used in an ideal, free world, a world without
rules and regulations. Economists are wholly ignorant of the
far-reaching effects of digital economy. The most advanced among them
prepare estimates about electronic commerce, a type of commerce whose
implications they fail to recognize. Business administrators worry about
e-marketing, but few talk about the reinvention of business
Let me focus now on lawyers. Lawyers do not see beyond their eyes.
The idea of convergence has not touched them. They still have their
specializations: experts in constitutional law, in business law, in
telecommunications, in patents and trademarks, in copyright, in
administrative law, in mass media, in maritime law, in international
private law, etc. They focus their attention only on specific topics.
Faced with new challenges that arise from the Internet, they look for
solutions within the traditional regulatory framework, or try to apply,
by the same token, the solution arrived at in former court decisions.
Throughout Latin America, the associations of lawyers, of notaries
public and CPA's have established computer science committees in order
to identify and study these issues as they arise. The fact of their
being called "computer science committees" gives you an idea of the
degree of development of their parent associations. Instead of
delegating the responsibilities for these topics, they relegate them.
Owing to the backwardness of these associations, and the scant number of
people involved, they have not yet been able to create subcommittees
specially oriented to the study each particular issue, as is standard
practice in ABA. We have, however, one thing in common: their
committees, as well as ours, are exclusively composed of lawyers.
This is true, I believe, of the rest of the world. Each sector
analyzes the digital phenomenon from its standpoint. Neither do
universities or other independent institutions affirm the need to create
interdisciplinary centers formed by engineers, lawyers, economists,
philosophers, business administrators, journalists, experts on
communication sciences. As regards jurisdiction, a prevalent idea is
that "one of the things that may be new about the Internet and its
relationship with jurisdiction is the role that private ordering,
private self-regulation, may play in conjunction with a governmental
framework to deal with some of the uncertainties of applying traditional
jurisdictional concepts to this new medium". I agree with that. However,
the result is that each different sector prepares its own private
project, which is looked upon suspiciously by the rest. Private
initiative loses its strength when institutions are composed of experts
trained in the isolation typical of their specialization. Let us
consider, then, how valuable interdisciplinary committees could prove to
be in this respect. This, I believe, will be the challenge of the
Debating About Definition and Regulation of the Internet. The Checklisten
Latin America has not yet given thought to the crucial need for
defining the nature of cyberspace. However, we, just as much as the
European Union, love regulation. Thus, we rush to regulate through
legislation whatever comes first to our attention: electronic commerce,
electronic or digital signatures.
Nobody thinks about the distinguishing features of the new world in
which the activities to be regulated are performed. Nobody asks
themselves what cyberspace is. Nobody thinks if, when we are there, we
are in some other place altogether, or are still here, or else, whether
we are here and there, in two different places at the same time.
Legislators and jurists apply criteria from the real world in order to
regulate these new realities without asking themselves whether they
should be looking for a different approach. This practice is encouraged
by the lack of an interdisciplinary perspective. Lawyers, lawyers and
more lawyers. There is the intention of solving the very few cases about
jurisdiction raised in Argentina by applying to them traditional
Let me tell you some of the questions we should be asking
Was this space, as many people say, born completely free, not bound
by any rules or laws? If this were so, should it be kept free of
regulation? Is this possible or even desirable? Are there any other
forms of regulation besides laws? Isn't the very architecture of the
Internet a form of regulation? Is it advisable to avoid government
regulation? Can we leave everything to be determined by market laws, by
the values that some people decide to invest cyberspace with? Does the
non-intervention government policy guarantee that cyberspace will always
be free of regulation?
Not finding the answer to these questions can be the cause of certain
issues losing their importance, and one or them can be that of
jurisdiction. As long as the Internet keeps losing its original values
or principles, its open source software or end-to-end architecture, as
long as the battle over the distribution of contents is lost to patents
and copyright, we will witness a stronger tendency towards the
zonification of space in order to allow for the application of local
Some time ago I read an article by David Post, "Napster, Jefferson's
Moose and the Law of Cyberspace", and this sentence remained clearly in
"Sadly, we, as lawyers, are often the chosen
instruments for expressing the fear, for exterminating the new in the
name of serving the old". "We need more doubt about law in cyberspace,
fewer answers and more questions, fewer fences against, and more roads
to the land lying on the other side of the Allegheny
But, since it 's true that, when we are there we are still here, here
we still have traditional analysis methods that may be helpful in order
to decide on the necessity, convenience and opportunity of
The "Checklisten" technique can be useful for us in this respect.
Remember Checklisten is a technique without a purpose of its own. Its
aim is, in any case, to help the law become feasible (while it is being
drawn up and also in its subsequent application), whether it belongs to
the citizens or to the state. I will only remind you the ten simple
issues proposed by Germany's federal government. These topics are then
subdivided into subtopics:
- Is it really necessary to do something?
- Which are the alternatives?
- Should the federation have a hand in this?
- Should a law be drawn up?
- Is it necessary to take some measure now?
- Should legislation cover the foreseen scope?
- Can the licensing period be restricted?
- Does legislation share the same mind with citizens' opinions?
- Is legislation feasible?
- Is the cost-benefit ratio reasonable? Let us take a look now at the
range of alternatives: What costs will the affected people incur? Can
you impose a financial burden such as this on the affected people? What
additional costs would be created in national, provincial and local
budgets? Were any studies made about the cost-benefit ratio? Which were
the results? After this law becomes effective, how will we measure its
effectiveness and secondary costs?
ITCenit and a Global Initiative for Argentina: "ARGENTINA DIGITAL"
ITCenit, Research Center on Information Technology, was established
in 1996 with the aim of exploring the impact of digital revolution upon
the law and economy, as well as upon education and society as a whole.
Since the founders, Mr. Horacio Lynch and I, both were lecturers at
different universities, we decided to talk with them so as to create
this interdisciplinary center drawing on resources from their different
schools. At that time, nobody understood what we were talking about, or
even the importance of the issues to be studied and researched. Thus, we
were forced to go ahead without their support. I can now proudly share
with you that, after four years of work, at the beginning of 2000
ITCenit, backed by the American Embassy in Argentina, submitted a
proposal for the designing of a comprehensive initiative on IT to the
Argentine government. This initiative was called ARGENTINA
DIGITAL, and it contains the aims that the government should
pursue in this matter. The government has adopted some of our proposals,
so we hope we are beginning to head in the right direction. But there is
still a lot of work to be done.
In Latin America we do not have clearly defined policies that join
together the different elements related to the Internet and the digital
revolution. Without this type of initiatives, without a consistent
debate, without an interdisciplinary approach to the subject, electronic
commerce, as well as all related legal matters will remain as
undetermined and vague as they are today, and this will adversely affect
electronic commerce in this region.