Metainformation II: Law produces metainformation

It is possible to think about law as a kind of metainformation. Law structures information, concepts and actions and describes consequences of an action assuming that it conforms to criteria set up. Law consists of a set of rules that describe how information should be treated, what it is and how it can be transmitted. Law thus produces metainformation in a very real sense.

Take copyright. Copyright information is metainformation about how certain information may move in a market and under what conditions it can be shared, transmitted, stored…the legal status of a certain piece of information determines its use in several different situations, and we see this explicitly in so-called rights-management information systems. In watermarking metainformation even becomes explicit: any work can be assessed as to its legal status by reading the “meta-tag” provided with the work. In intellectual property law we also see even metainformation being regulated. The most obvious example of this is the regulation of rights management information in the European directives on copyright. The prohibition against manipulating or removing electronic rights information (or metainformation as it were) is a legal rule pertaining to metainformation. The RMI is not protected because of its own value, but because of its value as metainformation.

Conversely, law can also require that we know metainformation about information. In Sweden a recent legal reform prohibited the downloading of information from the net if the user knew or should have known that the information was put there without the consent of the rights holder. That rule, in essence, is a requirement that the user contextualize and assess metainformation about a work before using or accessing it (can we use work and information as synonyms? Well, perhaps we should be careful: works are information sets that present with a certain cohesion). In this case an act becomes illegal if the metainformation is not accessed or at least probably determined.

One argument against a law like this could actually be based on this: that in order to maximize the sharing of information we should never require users to assess or try to determine metainformation about any work before they use it. The logic behind such an argument could then be that any other rule would impose costs on information sharing equal to the determination of the probable metainformation applicable to a work, and that such costs will rise with the information explosion we are living through.

A related question is whether law should really be tasked with determining metainformation. That is an interesting question, and fairly complicated. It requires that we think about points of regulation and points of determination. A point of regulation is where a rule applies its force, the target for a rule. Where we place the point of regulation determines where a potential crime is committed. The point of determination is where we assess if the potential crime is an actual crime by comparing the actions we have observed with the rule we have put in place.

Assume that we want to stop access to pornography. We can then do this in two different ways. The first is to force everyone to use a standard – say PICS – and then simply require a) that all browsers implement a forced PICS-analysis and b) that all pictures published on the internet be marked up with PICS (or not visible in browsers, then). We then exclude some categories of “sexual content” in law. That places the point of regulation in the browser and it places the point of determination in the classification of pictures according to the PICS standard, where no classification means that an image will not be displayed in a browser. The potential crime here is for the browser maker not to include the PICS-based filtering, or for the user to circumvent it. The determination of whether a crime is committed then becomes the determination of whether a piece of software has been written according to the demands or if it has been tampered with in any sense.

The other alternative is to legislate and to prohibit individuals from accessing pornography. If they do so they are liable to be fined or jailed according to the severity of punishment we wish to apply. If a work falls under the prohibition in the law is determined by a legal valuation in court. This places the point of regulation at the user and the point of determination in court. The potential crime here is accessing the image, the determination of if this is an actual crime is made by looking at the image and determining if it fulfills the stated criteria for pornography that is prohibited.

One way to understand this difference is to say that the first piece of legislation is architectural and the second value-oriented. In the first case we determine if a crime has been committed by looking at the design or tampering of a piece of software. In the second we try to determine the ethical content of an action.

There is something here that needs our attention. Laws that target architecture are in a very real sense post-ethical laws, they rob legal rules of moral content. A legal rule that targets the design or tampering of software says nothing about the ethical nature of watching pornography. A legal rule that asks if a picture is pornographic requires a value-judgement to a much higher degree (is not design, ultimately, about values too? Yes, of course, and tampering even more so, but there is a difference here that still qualifies as a difference in kind rather than a difference in degree, I believe).

In the first case the image becomes pornographic when the metainformation is applied to it, and this is a process not necessarily performed in court (not probable to be performed there, as a matter of fact, but more likely to be performed by the publisher of the image). In the second case the image is deemed pornographic after a court has looked at it and the determination is made under rule of law.

There seems to be a possible hypothesis here: the more consequential the application of a piece of metainformation, the more important the judicial nature of the process, the transparency and the openness.