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Jurisdiction II: Global Networks/Local Rules

September 11-12, 2000
San Francisco, CA

IT Global Initiatives In Latin America: Is It A Dream?

Mauricio Devoto
Director
ITCenit
Research Center on Information Technology
Buenos Aires, Argentina
www.it-cenit.org.ar
mdevoto@interlink.com.ar


Introduction

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" America.

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 enterprises.

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 future.

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 interpretation criteria.

Let me tell you some of the questions we should be asking ourselves:

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 laws.

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 my mind:

"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 Mountains".

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 regulation.

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:

  1. Is it really necessary to do something?
  2. Which are the alternatives?
  3. Should the federation have a hand in this?
  4. Should a law be drawn up?
  5. Is it necessary to take some measure now?
  6. Should legislation cover the foreseen scope?
  7. Can the licensing period be restricted?
  8. Does legislation share the same mind with citizens' opinions?
  9. Is legislation feasible?
  10. 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.

Conclusion

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.

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