Internet Bar President

Definition. Let us define trust for the purpose of our discussion. Trust as “believing that others tell the truth and keep their promises.” Trust can be risky if our belief is wrong; if trusted persons do not tell the truth and do not meet their promises. We exclude from the definition “gullibility”– unreasonable trusting and “faith”– believing unconditionally, usually as a matter of religion.

Importance. Trust is important. Advanced economies, and in fact, each of us cannot survive without relying on others, to a greater or lesser extent.

Costs and benefits. Trust can be efficient when the cost of verifying other people’s statements and reliability of their promises is higher than the benefit from the relationship. Thus, the cost of verifying the honesty of a money manager that controls my life’s savings may be higher than the benefit I can derive from his expertise. In such a case I would engage this money manager only if I trusted him. Trust is even more efficient when the cost of my money manager in convincing me of his trustworthiness is higher than the amount that he would receive for his services. In this situation the gap between us would be too great, and we will interact only on the basis of trust. The use of cell phones, television, and the Internet has introduced a habit of trusting ‘virtual people.’

Mobility and quick interactions among people blur the difference between friends and casual acquaintances. In the networking mentality of business circles, people often confuse exchanging business cards with time-tested relationships… People often assume that sharing the same occupation means sharing the same level of trustworthiness. These assumptions can be wrong. But it is too costly to check every person that one meets in conferences and business engagements.1

Trust facilitators. There are many private sector facilitators of trusting relationships. They verify and guarantee particular facts or actions of other people or organizations or situations. These facilitators include lawyers, accountants, advisers, commercial and investment bankers, rating agencies, and credit-card issuers.

There are organizations that check out and guarantee their own members’ trustworthiness, such as physicians, lawyers, accountants, investment bankers, and broker dealers. Some organizations are themselves regulated by government agencies (e.g., the New York Stock Exchange and the National Association of Securities Dealers, and the American bar Association). Banks and insurance companies are not as organized presumably because they are strictly regulated and trust in them is very strong.

Internet “verifiers” such as Verisign and eTrust establish trust. Reputation, which can establish trust, may arise by networking, publicity through independent sources (e.g., newspapers) rating by customers (e.g., eBay and public polls) and inquiries of friends and acquaintances. A trust-creating program is LinkedIn, where users guarantee specific persons for whom they vouch to people who do not know them. The law is a weaker guarantor of trustworthiness in the virtual world that in the real world.

The question: what other mechanisms can be established to create a trusting and trusted community in the virtual world?

I recently had the chance to write about the question of what international law has to due with blogging and other conduct in the ‘blogosphere’.

Because of globalization, the world has a chance to meet on an internet commons using internet communications technologies (ICT) for the first time in history; here, we interact with each other across cultures and create a whole host of new legal issues; Thusfar, the predominant way in which these issues have been presented for resolution has resulted in a series of conflicts between weakening international laws and multiple domestic laws all vying for superiority over each other. A perfect case study of this phenomenon occurs in the Blogosphere. Blogging across cultures results in multiple personal jurisdictional claims by affected jurisdictions who assert the right to protect their nationals. Whose law governs, the prime focal point of internet governance and jurisprudence, is the major international law issue which needs resolution.

What is today’s state of play on internet governance? Regardless of the group dealing with the legal issue, the analysis always ends up focusing on where all the conflicts of law exist and less on how we can resolve these issues in a short time (change the process!) as opposed to the generation or two it seems to be taking. (see fn 1 at end) Can anyone doubt that the global commons can’t function successfully if it must suffer a decades long process of deciding who gets to decide the norms and law of the internet? We need to come up with new ways to generate customary international law for the commons.

Building a global culture of collaboration to serve society by shaping an online justice system (OJS) is IBO’s main mission. An OJS that supports the needs of an emerging global society to find order in cyberspace IS one way the legal profession can help society regain trust in each other and our institutions. We can create a new process to bring to life the customary international law cyberspace needs to function as a global commons and marketplace. IBO’s goal is to organize online communities which are trusted to help build a cross-cultural consensus on what should be the normative (predictable) behavior on the global commons. By doing this, we believe we are helping the legal profession live up to our responsibility to lead society in times of great change. Ultimately, it is up to lawyers as a group to promote harmonization and avoid conflict. And we think that a virtual bar association for lawyers and anyone else interested in law reform to meet on the internet commons CAN help foster a global culture of collaboration.

I wrote about the lawyer’s role to build a new international law making process in New England School International Journal where I described the responsibility of lawyers to bring the rule of law to cyberspace:

“Samuel Johnson’s instructive words remind today’s lawyers that
experience must guide the transformation of the practice of law in the
twenty-first century. Lawyers must draw upon historic roots as the
guardians of the rule of law and face the challenges of a changing world by
finding new ways to practice law in the next century as a global online
society emerges. As lawyers, we must remind ourselves, our profession is
nimble, providing society a steady-beacon in its foggiest hours. We must
draw upon our collective experience to assure that rapid changes in society
coincide with rapid changes in the law and social order. In the first decade
of the twenty-first century, cyberspace will become the place where most of
the world’s business is conducted; and, a networked world will demand that
a global legal architecture be put into place. As the mechanisms for making
global law struggle to keep pace with changes wrought by the Information
Age, the legal profession can and should be at the forefront of bringing
about just rules of law to the electronic frontier. Our profession’s historic
opportunity is to transform itself and become global by meeting the needs
of the new global online society.
The global online society will look to private parties as well as to
governments to develop rules of law for transactions occurring in
cyberspace. Indeed, international law is no longer solely the rubric of the
nation-state foreign ministries and state departments. The changing role and
global nature of the legal profession also present many new challenges and
opportunities for the day-to-day practice of every lawyer.
4 SAMUEL JOHNSON, PIOZZI: ANECDOTES c.1750. (English, Author).

http://www.nesl.edu/intljournal/vol8/aresty_v8n1.pdf

To start the global consensus building community for bringing the rule of law to cyberspace, IBO is starting a contest to build a trusted online community. Our first task is to come to a global consensus around the issue of culture and honesty, which is being led by our esteemed colleague, Boston U Law professor, Tamar Frankel. The contest is being set up to attract participation especially from young lawyers, law students, business students, and anyone else interested in these topics who want to make a contribution. Since the grand prize will be the opportunity to be the Reporter at the 6th International Forum on Online Dispute Resolution to be held in Hong Kong this December, with all expenses paid (it is co-sponsored by the UN and let by Ethan Katsh and the U Mass CITDR (www.odr.info), we hope and anticipate a broad participation in the contest from all generations! We can hope and work hard to make this a reality with the help of many! The contest will be announced shortly, and if you want you can take a peek at http://www.internetbarcontest.org/.

Internet governance is the most significant international issue of them all as it will affect the outcome of every activity humans can devise when using internet communication technologies.

fn 1 - Fn1 - From my activities/readings from all of the ABA sections (SciTech, Business Law, International, TIPS) I belong to, today’s commons activity is mostly a series of reports on ongoing legal conflict with some early attempts at harmonization that don’t have much success. This state has arisen because there isn’t an agreement in the world today about who governs the internet. For lawyers and terrestrial bar associations, the result is a case by case application of international laws (conventions, treaties, some customary law, and a whole host of conflicting norms) to global commons conduct (like blogging) which most times creates conflict with several domestic laws which also apply to the same conduct due to disparate personal jurisdiction standards.

Thanks to Mark Mason and Richard Comenzo for commenting. Here are Richard’s comments:

You do ask alot of questions but my view is that the Internet will make the practice of law more efficient. I envision the Internet to allow attorneys to find information on a particular matter that will be organized in a manner that is most effective for their particular usage. Just as consumers can “create” their own shopping universe on the Internet, lawyers will be able to “create” their own research environment on the Internet. This will allow the lawyer to deliver a product effectively and efficiently to their consumers, i.e. the courts, clients and other lawyers.

As to ADR, the majority of cases, just as in criminal law, may be settled via the Internet, but there always will be a few that can only be settled face-to-face.

Concerning transformation of the legal profession, thats an easy one. Economic factors will push the profession to adopt and accept technology. The profession will have no choice in the matter just as corporations had no choice but to embrace the technology revolution or else go out of business.

Finally, the electronic filings instituted by the Federal Courts and the new e-discovery rules will certainly have an impact on the business of lawyering.

Yesterday, I made a presentation with Ethan Katsh to several Massachusetts Bar Association lawyers in Springfield on the occasion of launching the Internetbar.org Insititute (www.iboinstitute.org) . The internet culture is upon us and the legal profession has its first opportunity to learn the tools, access the resources and be able to compete at the pace our clients demand in this climate of hyper-connectivity.

We are releasing new courses to the profession, first to MBA lawyers, on breaking the billable hour habit, productizing your practice, multi-casting your practice using web-casts and pod-casts, using new techniques such as online dispute resolution, and incorporating resolutionary thinking into your practice.

Afterward, I spoke with the lawyers who were present, and they raised questions about finding the time to make all these changes. Lawyers are so busy it seems, that learning new technologies is a real challenge. After all, don’t the new technologies change just as fast as the ipod being replaced by the iphone? Then what happens?

What do others think? Is it an impossible task to get the legal profession to transform itself? Do lawyers think that we are all ready using technology effectively and there is no reason to change any more?

Are you noticing signs that business is more difficult to come by? Are people finding legal information and documents online before they come to your office?

Are clients asking for disputes to be handled differently than having their day in court?

What do you think?

In the next couple of days, I will be working with Anne Nyambura in Somalia, and Ayo Kusamotu in Nigeria, to finish a draft of a plan we will submit to foundations and development banks for funding. Ayo has written on the IBO website about the liberating effects technology can have on the developing world, but potential is not enough. While many efforts are being made to focus the world’s attention on the wars and devastation in many parts of Africa, IBO’s role will be to bring the potential of technology to reduce poverty and create sustainable development opportunities in Africa to fruition. Our hope is that sustainable development trumps war every time. We will continue to inform you of our work, and we hope that many of you will offer to join our efforts in any way that you can.

If there is one thing that 2006 has brought home to me, it is that the power of internet communications technologies to reduce poverty by empowering people across the digital divide is our greatest opportunity. By integrating economic opportunities from one continent to another, we can build bridges between cultures and foster peace and understanding.

In the early days of the internet boom (the mid 1990s), the American Bar Association passed a resolution in its House of Delegates which recognized that electronic commerce requires international cooperation; and, it encouraged international discussion among public and private sectors to eliminate barriers to electronic commerce and to establish uniform principles by which international trade would be conducted electronically.

Internetbar.org has been working on a project to do just that. Our Africa e-commerce project envisions linking people and businesses from both sides of the digital divide in a reliable virtual marketplace where they can safely conduct global e-commerce. By doing so, this will provide sustainable economic opportunities in the developing world with the ultimate goal of poverty reduction. A key goal is that this program will be replicable across the developing world.

Currently, IBO is reaching out to disadvantaged populations in Kenya and Nigeria to enable access to the internet, and provide sustainable online economic opportunities. IBO is working with groups such as abused women, refugees, and youth to access e-payment systems, make agreements over the internet and conduct the full range of e-commerce activities by linking buyers and sellers directly.

We need your help! Please join us!!

Having just returned from two weeks in China, I was thrilled to go to New York for a day to hear officials from the city of Shenzhen (next to Hong Kong) praise their city and invite the world to the next “Bangalore”. For the legal profession, add China to the list of upcoming outsourcing locations for the delivery of legal information and services.

At the table where I was, the man from India sitting next to me had just come back from a retail fare in Shenzhen and said that clothes manufacturing facilities were leaving China and moving to Viet Nam and Cambodia to reduce their labor costs. This was pushing cities like Shenzhen to move aggressively into the business process outsourcing business. A presentation on legal business process outsourcing by Nena Wong, CEO of The Corporate Legal Standard, Inc., emphasized the opportunity to deliver legal information to corporations much less expensively than today’s service providers do using the billable hour method as the primary governor of the value of the services. Commoditization of many legal jobs is both necessary and possible. Ms. Wong announced the first Legal Business Process Outsourcing (BPO)center for the city of Shenzhen was just established with the purpose of creating a standards-based legal BPO and work with the global legal industry to create new delivery mechanisms using internet communications technologies (ICT).

In addition to Ms. Wong, the city of Shenzhen’s mayor pointed out that by 2010, China will be the home of the largest ENGLISH speaking population in the world!! With brand new ICT structures, and a population hungering to get online (under 200,000,000 of China’s 1.3 billion people are online - and, even that is a staggering number, and about 15% have broadband), China gets the potential of the internet.

That is why Internetbar.org’s project to build a trusted online community to harmonize e-commerce laws is asking leaders from the developing world to lead the way. Both our Africa and China committees are gathering legal knowledge from all over the world and are putting forth recommendations on how the law of the internet can work in ways to foster collaboration, not thwart it as existing conflicts of law paradigms do.

China is moving forth with generations holding hands to help each other. The most inspiring story I heard on my recent trip was at dinner the night before coming home. A People to People delegation of doctors mixed in with our Rule of Law delegation and we asked each other about our experiences. The doctors had gone out into the rural countryside to see how health care is dispensed far away from the cities. This is the China I saw 15 years ago, but definitely had not seen on my trip through Beijing, Guilin, Shanghai and Hong Kong. The doctors had seen rural China - and this village had a satellite dish connected to the internet; their children had been sent to the cities to lead tours of visitors, earn money, learn how to use the computer and come home to make sure every generation could get online.

From the cities, where ICT was easily available, to the rural countryside, China gets the internet. We are about to witness a revolution in low cost delivery of BPO services the same way we witnessed the change of how so much else we buy to wear and use is “made in China”. Reducing costs is a good thing for the world, as it is a further example of how globalization’s benefits are being driven by ICT.

IBO’s plan is to bring the ways we make and enforce laws on to this playing field, with lawyers and everyone interested in law reform around the world linking together to illuminate the path!

Upon returning from China, it’s clear that the Chinese lawyers and everyone interested in law reform there take the internet seriously. There is a great deal of discussion about enacting enabling e-commerce legislation in China, and in growing the number of internet users exponentially in the next five years. Though there is Chinese government censorship, in all reality it doesn’t stop information from getting out and around China and the world. Enough people know how to use internet communications technology (ICT) to serve their purpose. And the Chinese lawyers, judges and government officials our ABF delegation spoke with all commented on the need for harmonizing the rules of law in cyberspace from the beginning of China’s internet growth phase. IBO is committed to work together with Chinese lawyers and lead the project to bring the rule of law to cyberspace and help shape the Online Justice System of the 21st century based on a global culture of colloration.

Last night, I used the SKYPE network to talk with Steven Huang of J & F PRC lawyers in Shanghai about joining and helping lead our China Committee’s e-commerce project. I met Steven’s partner, Scott Guan, in Shanghai in the next to last day of our People to People Rule of Law ‘exchange’ visit to China. Since we are both using SKYPE, we can collaborate for free and IBO now has a leading Shanghia law firm ready to work with us on harmonizing e-contract standards, cybercrime rules, and setting standards for digital identity and trusted online communities.

Truly, a combination of face to face networking, followed by collaborating using ICT, opens up possibilities for the world that will change it for the better.

While in Guilin, our Delegation was invited to be the guest participants at Guangxi Normal University College of Law’s “Forum on Legal System and Social Development.” Mr. Zhou, the President of the Law School led our delegation into the auditorium where we were given a warm ovation by over 300 students and professors in attendance. He stated that bringing American lawyers and judges to their school was important for the advancement of the rule of law in China. He emphasized that there are great differences between our legal systems and the training to become lawyers and judges. There are 400 schools of law, 600 colleges with legal majors, and degrees in law up to Ph.D. are offered. At Guangxi Normal, there are 800 undergraduate students majoring in the 4 year law program, and 160 students seeking advanced degrees. Unlike the US, one can choose to enter law school upon completing high school and passing the entrance examination. Mr. Zhou noted that China is passing laws every year as well as setting up the enforcement agencies necessary to build a culture of the rule of law in China.

Presentations were made by senior members of the ABF delegation, Jim Silkenat, Willis Whichard, and Steve Zack on the training of lawyers and law practice in the US. Afterward, there was a lively Q and A session from the chinese students. The most interesting question came from one of the chinese students who asked how the US can say it has a system based on the rule of law, when movies such as the Academy Award winning CRASH depict racial violence and lawlessness in the US city of Los Angeles. The delegation members who responded noted that the movie depicts some of the worst traits in American society today. The movie is about legal corruption and dishonesty in the police force against a complicated background of racial tensions in the US. That said, what is evident is that the movie offers the US society an opportunity to discuss its most troubling aspects of our legal system openly and work toward improvement. This is the mark of a legal system based on the rule of law.

Following the meeting, our Chinese national guides apologized profusely for the tough question, which most of us thought was a great question which gave us a chance to interact at a substantive level with the students. They pointed out that we should understand that Chinese people still have very limited chances to engage with westerners and that for these law students, their view of the American legal system has been limited to what they have read about it and watched on TV and seen in the movies. So the chance to engage in a professional exchange with US lawyers gave them the opportunity to ask questions that had been bothering them, but had previously had no chance to ask.

Questions about “No Child Left Behind” and the “Patriot Act” were also asked and answered. The chinese students wanted to understand our federalist system where the US government could set educational standards at a national level, while many people still believe in home rule at the state level. This tension between Beijing and the provinces also exists in China, it was noted. With regard to the Patriot Act, the delegation members who answered emphasized that the Act did not suspend the US constitution, and that individual cases arising under the Act would be litigated for years to come.

David Ravin, a US bankruptcy lawyer from our delegation, noted how fascinated he was by the chinese knowledge at a very detailed level of the US legal problems. It was mentioned many times that the Chinese are really building a system based on the rule of law since 1979 (after the Cultural Revolution). Again, there are slightly more than 100,000 lawyers in China, for 1.3 billion people. The US has 1.5 million lawyers for 300,000,000 people. The legal culture is ascending in China, not without its problems; but then again, as the Guangxi Normal law students pointed out to us, the US legal system has its problems as well.

All of us were thrilled with the opportunity to work together in the forum and hope to continue our exchanges in the months and years ahead.