'Sealand, HavenCo, and the Rule of Law' by James Grimmelmann in 2012(2) University of Illinois Law Review 405-484 notes that -
In 2000, a group of American entrepreneurs moved to a former World War II antiaircraft platform in the North Sea, seven miles off the British coast. There, they launched HavenCo, one of the strangest start-ups in Internet history. A former pirate radio broadcaster, Roy Bates, had occupied the platform in the 1960s, moved his family aboard, and declared it to be the sovereign Principality of Sealand. HavenCo’s founders were opposed to governmental censorship and control of the Internet; by putting computer servers on Sealand, they planned to create a “data haven” for unpopular speech, safely beyond the reach of any other country. This Article tells the full story of Sealand and HavenCo — and examines what they have to tell us about the nature of the rule of law in the age of the Internet.Grimmelmann's article complements Adrian Johns' lucid Death Of A Pirate: British Radio and the Making of the Information Age (Norton, 2011). He comments that
The story itself is fascinating enough: it includes pirate radio, shotguns, rampant copyright infringement, a Red Bull skateboarding special, perpetual motion machines, and the Montevideo Convention on the Rights and Duties of State. But its implications for the rule of law are even more remarkable. Previous scholars have seen HavenCo as a straightforward challenge to the rule of law: by threatening to undermine national authority, HavenCo was opposed to all law. As the fuller history shows, this story is too simplistic. HavenCo also depended on international law to recognize and protect Sealand, and on Sealand law to protect it from Sealand itself. Where others have seen HavenCo’s failure as the triumph of traditional regulatory authorities over HavenCo, this Article argues that in a very real sense, HavenCo failed not from too much law but from too little. The “law” that was supposed to keep HavenCo safe was law only in a thin, formalistic sense, disconnected from the human institutions that make and enforce law. But without those institutions, law does not work, as HavenCo discovered.Grimmelmann concludes
In December 2010, the Sealand government sent its Facebook and Twitter followers a message: Sealand has been asked to give #Wikileaks founder Julian Assange a passport and safe haven. With recent releases by Wikileaks: Are they a guardian of the public right to information or a hugely irresponsible threat to security of the international community?
That the Internet’s latest mutineer would sooner or later be linked with Sealand should come as no surprise. From pirate radio to the Pirate Bay, Sealand exerts a magnetic pull on all those who would remake the world by standing outside of existing legal systems. Little wonder, too, that Sealand’s history has taken us to tax havens and cyberspaces, or that Sealand holds pride of place in books on micronations and seasteading. They are all rebels against the existing order of things.
But, as one review of a book on pirate radio puts it, “Ya gotta have rules, it turns out, even if you’re a rebel.” All of these dissident utopians must face the same three issues of law that HavenCo did: how far will they push against national law, how will they protect their right to exist under international law, and how will they use internal law to govern themselves? These are hard problems on their own, and HavenCo’s experience illustrates that they intertwine in ways that make them even harder.
Remarkably, even the creators of fictional data havens have understood as much. Their authors take the international-relations and inter- nal-governance issues seriously. The data havens in Bruce Sterling’s Islands in the Net are all island states whose sovereignty is guaranteed by a strong worldwide treaty regime with its own armed forces. Even so, they are unstable: Grenada and Singapore collapse during the course of the novel. William Gibson’s Freeside is even simpler: it floats in high earth orbit, where terrestrial nations can’t get at it, and is controlled absolutely by the Tessier-Ashpool family.
Kinakuta, from Neal Stephenson’s Cryptonomicon, is the most famous and most fully worked out of the fictional data havens, the one that most seriously tries to imagine what it would take to make a data haven work. Kinakuta is a wealthy nation sitting on top of absurdly rich oil de- posits, with a long history of multiethnic tolerance, a substantial population, a thriving business culture, and a bureaucratized administration. Externally, the oil-rich Sultan of Kinakuta has a strong hand to play if other nations take offense. Internally, he explicitly promises to “abdicate all governmental power” over information flows. Unlike Roy Bates, the Sultan of Kinakuta has a lot to lose if his country proves a bad business environment.
As Kinakuta and Sealand show, one can’t stand up to national authority without law in one form or another—which means one will also need political institutions that grapple seriously with the inevitable ques- tions of power and community will. Or, to put things more optimistical- ly, anyone who successfully manages to answer these questions is likely to have built something that bears more than a passing resemblance to a nation-state. Consider Iceland, which recently made itself into a “safe haven for investigative reporting” with “the world’s strongest protections for free speech and journalism.” Iceland is a sovereign nation, but even more importantly, it has a police force, a population that favors the press-shield law, and a parliament founded in 930. (No, there is not a “1” missing from that date.) One last example may be helpful. Every so often, someone complains about the “maritime” flags in U.S. courthouses. The theory is that gold fringe and an eagle on the standard transform the “American flag of peace” into the “military” or “maritime” “flag of war,” under which civilian courts have no jurisdiction. There are hundreds of such theories. They never work, but they also never stop coming.No matter how patiently the courts explain that Ohio is a state, or that individuals are not sovereign, or that a filing is valid even if its caption spells your name in capital letters, the arguments never cease.
I am not concerned with why people are willing to believe what one commentator, perhaps unfairly, calls “Idiot Legal Arguments.” People believe all sorts of strange things, and occasionally some of them turn out to be true. Instead, it’s worth asking why people expect these heterodox legal arguments to work. The cases involve tax protesters, militia members, prison inmates — people who have extensive, firsthand experience being at the wrong end of government’s stick. Either their faith in a fearless and independent judiciary is strong indeed, or something else is going on.
We can sharpen the point. In Stephen Vincent Benét’s famous short story The Devil and Daniel Webster, contract law and a jury trial are binding even on the devil himself. Like the tax protesters and like HavenCo, Benèt imagines that there is a great and malevolent power afoot in the world, that law will suffice to hold this power back, and that law will do this of its own accord, simply because it is the law. This vision of law invests it with supernatural force; it collapses law into a system of magic words.
But law is not an external, autonomous system of self-enforcing rules: it is made by people, for people, and of people. No judge sitting in a courtroom containing a flag with gold fringe is going to declare that flags with gold fringe deprive courts of jurisdiction. No matter what a piece of paper labeled “law” says on it, if it has no correspondence with what people do, it is no law at all. Ursula K. Le Guin once wrote, “Love doesn’t just sit there, like a stone, it has to be made, like bread; remade all the time, made new.” The same is true of law and the rule of law. It takes work to make law work.
