The Chronicle Review

Camels, Commerce, and Fiber-Optic Cables

A. Demotes, Photononstop, Corbis

The Silk Road: metaphor for modern cybercommerce?
August 12, 2013

Imagining the ancient Silk Road conjures up visions of caravans crossing desert expanses, laden with rich goods from the East. Along with the trade in goods came the transfer of ideas. Buddhism stretched from the Indian subcontinent to China and Japan; Hellenistic and Central Asian theories of art reached previously isolated locales. Undesirable transfers (like the bubonic plague) were difficult to prevent.

The cellist Yo-Yo Ma has called the ancient Silk Road "the Internet of antiquity," and—foreign as it may at first appear—the Silk Road is an apt metaphor for modern cybercommerce, according to Anupam Chander. In The Electronic Silk Road: How the Web Binds the World Together in Commerce (Yale University Press), the legal scholar contends that to understand the "jurisdiction-hopping" of Internet trade, we can learn from a similar case of legal (and commercial) disruption.

Chander, director of the California International Law Center and a professor of law at the University of California at Davis, thinks that, like the ancient Silk Road, Web commerce "promises to remake the world" and, in the process, legal frameworks. Fiber-optic cables, satellite links, social media, and online purchasing have introduced prickly problems for nations, technology companies, and international regulatory organizations.

What happens when a Russian Web site starts selling music albums to customers around the world for less than $1? How can Yahoo respond to allegations that Holocaust deniers are using its Web site to break French law—without compromising the company's commitment to free speech? How should the World Trade Organization settle an American claim against Antigua's online gambling sites?

More broadly, Chander asks, "Is law itself at risk, now avoidable by a mere single click?"

To parse the legal and commercial forces at play, the author adopts a definition of trade that incorporates digital services along with material goods. Net-work is his term for electronic information services delivered remotely. As such, radiologists in Bangalore examining and diagnosing patients from Boston's Mass General Hospital via digital records perform net-work. Net-work services like online matchmaking, accounting, and investment advising "can be even more lucrative than the silk and spices ferried across the ancient Silk Road." Silicon Valley is, according to Chander, "the world's leading net-work provider."

Interestingly, a legal framework for the net-work world can learn from ancient structures, like those of the Silk Road and the medieval lex mercatoria, an agreement used by European merchants to resolve disputes. Digital commerce, according to Chander, needs "the electronic version of the wax seal." It is also needs digitized approximations of handshakes, ink signatures, and word of mouth. Such innovations make up a part of a new "dematerialized architecture" that establishes legality and security through frameworks like the WTO's General Agreement on Trade in Services (GATS), and the European Union's Services Directive (which mandates that information on service-based commerce circulate electronically).

Another obstacle dealt with in The Electronic Silk Road is the sheer diversity of legal challenges to net-work trade. "If an event in cyberspace occurs both 'everywhere and nowhere,'" Chander writes, "whose law governs?" Internet trade could face a Balkanization, dissolving, for commercial and political reasons, into localities with little external communication. The concomitant risk, Stalinization, describes censorship of political dissidents as a byproduct of such a system.

To respond to these threats, the author suggests "glocalization" and "harmonization." The former recommends abiding by the law in the jurisdiction in which the electronic service is consumed—unless that law jars with international law; the latter recommends jurisdictions' bringing their own practices to mesh with internationally agreed-upon standards.

Broadly, The Electronic Silk Road seeks to chart "a middle ground between isolation and unregulated trade, embracing free trade and also its regulation." Not all will agree, admits Chander in a phone interview: "Early enthusiasts of cyberspace want it to be law-free. They see cyberspace as a parallel world that floats above us all."

The author explains his interest in international cyberscholarship. "I think there's a major lacuna in law. Cyberlaw scholars tend to focus on the United States. International-law scholars ignore cyberspace. It's a woefully understudied field."

The idea for the book stemmed in part from an exhibit on Genghis Khan at the Tech Museum of Innovation, in San Jose, Calif. Chander marveled that Khan "had created what was probably the world's largest free-trade zone," and started pondering historical antecedents for the disruption in trade caused by the Internet.

While The Electronic Silk Road is aimed at a general audience, its topic tends toward a specialized vocabulary. To shepherd casual readers through the unknowns of Icann and WIPO, the book includes a helpful glossary—a "cheat sheet for global e-commerce," he calls it.

Beyond such complexities, cyberscholarship comes with its own, more quotidian challenges. "I'm 46 years old," says Chander. "That makes me ancient."

Now he is looking forward to his next book. Its working title? "Law for Hackers: How to Create the Next Facebook."

David Wescott is an editorial assistant at The Chronicle Review.