Gendered

Under the headline 'Olympic Games and the tricky science of telling men from women (Gender tests may be the most controversial obstacle the athletes face. The London Games tries a new approach based on testosterone)' the LA Times last month commented that

Of all the obstacles athletes have had to overcome to compete in the Olympics, perhaps the most controversial has been the gender test. 

Originally designed to prevent men from competing in women's events, it is based on the premise that competitors can be sorted into two categories via established scientific rules. But the biological boundaries of gender aren't always clear. 

Consider the Spanish hurdler Maria Jose Martinez-Patiño. A gender test revealed that she had a Y chromosome, which normally makes a person male. She also had complete androgen insensitivity syndrome, or CAIS, which prevented her body from responding properly to testosterone and caused her to develop as a woman. 

The Spanish Athletic Federation got her test results in 1986, just before a major competition that would have set her up for an Olympic run. Though she won the 60-meter hurdles, the federation declared her ineligible for the 1988 Summer Games in Seoul. 

The International Olympic Committee has struggled with cases like these, variously using hair patterns, chromosomes, individual genes and other factors in their long-running attempts to distinguish men from women. All of these tests have been discarded. 

For the London Games, officials are going by a new set of rules that shifts the focus from DNA to testosterone, a hormone that aids muscle development, endurance and speed. 

To a group of increasingly vocal skeptics, the very notion of gender testing is flawed and efforts to measure it biologically are doomed to fail. But some experts said they had to try anyway. "There is no single metric for sex or athletic potential," said Eric Vilain, director of the Center for Gender-Based Biology at UCLA. But he called the new testosterone-based test a pragmatic solution to a real problem. "I have talked to many elite female athletes, and I haven't found one who is comfortable with the idea of having no testing," he said.

The IOC's new gender regulations disqualify from women's events those athletes who "have testosterone levels in the normal male range, which is 7 to 30 nanomoles per liter of blood". [PDF]

Nothing in these Regulations is intended to make any determination of sex. Instead, these Regulations are designed to identify circumstances in which a particular athlete will not be eligible (by reason of hormonal characteristics) to participate in 2012 OG Competitions in the female category. In the event that the athlete has been declared ineligible to compete in the female category, the athlete may be eligible to compete as a male athlete, if the athlete qualifies for the male event of the sport.

 Jon Bardin in the LAT reports that

Athletes with complete androgen insensitivity will be allowed to compete. 

It's impossible to say how many athletes in London will be affected by the new test ... Unlike past tests, which were given to all competitors in women's events, this one will be administered only when the chief medical officer of a national Olympic committee or a member of the IOC's medical commission requests it.  Ljungqvist said the test had a narrow purpose: "We are not determining the gender in an individual. What we are talking about is athletic eligibility."

The article notes that

Accusations of men masquerading as women in the Olympics go back at least as far as 1936, the year questions were raised about American sprinter Helen Stephens after her upset win at the Berlin Summer Games. Stephens passed some sort of gender test — the details are lost to history — and was awarded a gold medal. 

The Cold War raised tensions between the U.S. and Soviet-bloc teams. Whispers about men posing as women were rampant on both sides, leading the IOC to devise a testing procedure in the 1960s. Athletes had to parade nude in front of physicians, submit to genital exams and have their hair patterns analyzed before they could receive certificates of femininity. 

In 1967, that gave way to a more scientific test based on DNA. In people with two X chromosomes, one of them is inactivated and curls up into a tight ball, which the test detects. But the test proved inadequate in cases of conditions like complete androgen insensitivity syndrome, in which athletes had an X and a Y chromosome but the biological appearance of a woman. ... [T]he IOC switched to a test based on a gene called SRY, which initiates testes development. But since the gene is on the Y chromosome and merely tests for that chromosome's presence, it suffered the same flaws. Eight female athletes failed the SRY test at the 1996 Atlanta Games, though all had androgen insensitivity and were ultimately cleared to compete. 

That convinced the IOC to drop routine gender testing, but it and the International Assn. of Athletics Federations retained the right to test those suspected of competing under false pretenses or with medical conditions offering an unfair advantage. 

That's how South African runner Caster Semenya came to be tested at the 2009 World Championships in Athletics in Berlin. ... The international association conducted an inquiry and cleared her to race after a 10-month ban. She carried her country's flag in the opening ceremony for the London Games. 

Association officials were criticized for the seemingly arbitrary nature of their inquiry. The new IOC policy is crafted to be more transparent. ... 

To Martinez-Patiño, now a professor of sports science at the University of Vigo in Spain, the new rules echo the old — they just use a different metric. "Over time they will conduct research and demonstrate the ineffectiveness of this test," she said, "just as has happened with the others."

Legal Pragmatism

Characterisations of contemporary legal pragmatism are quoted in ‘On Legal Pragmatism: Where Does ‘The Path of the Law’ Lead Us?' by Susan Haack in 3(1) Pragmatism Today (2012) 8-31. It is an updating of her 2005 article in 50 American Journal of Jurisprudence 71-105 ...

Of late, the word "pragmatism" appears in the titles of books, chapters, and articles on legal philosophy often enough to convey the impression that there must be some kind of renaissance of pragmatism going on among legal scholars. When you look at the contents of those books and articles, though, you are likely to find yourself more than a little confused about just what this apparent renaissance is a renaissance of. 

Pragmatism, you will read, is - 

• simply a "general aversion to theory" (Atiyah, 1987); 

• it is "solving legal problems using every tool that comes to hand, including precedent, tradition, legal text, and social policy [and) renounc[ing] the entire procect of providing a theoretical foundation for constitutional law" (Farber, 1988); 

•  an "understand[ing] that what we see always depends upon our viewpoint, and that understanding others is frequently a matter of attempting to recreate the standpoint from which they view events" (Hantzis, 1988); 

• "a realistic expression of the recognition that metatheoretical claims to truth are philosophically indefensible" (Patterson, 1990); 

• "freedom from theory-guilt" (Grey, 1990); 

• "a kind of exhortation about theorizing ... not say[ing] things that lawyers and judges do not know, but rather remind[ing] lawyers and judges of what they already believe but often fall to practice" (Smith, 1990); 

• "looking at problems concretely, without illusions, with a full awareness of the limitations of human reason, with a sense of the 'localness' of human knowledge, the difficulty of translations between cultures, the unattanability of 'truth'" (Posner, 1990);   

• the view that "practice is not undergirded by an overarching set or immutable principles, or by an infallible or impersonal method" (Fish, 1990); 

• "a synthesis of contextualism and instrumentalism" (Grey, 1991); 

• "antifoundationalism and social optimism" (Hoy, l991); 

• the distinctly American philosophical movement begun by C. S. Peirce and William James, developed by John Dewey, and recently espoused by Richard Rorty ... a substantive position ... [which] yields relativism about truth and justice" (Warner, 1993); 

• "an eclectic, result-oriented historically-minded antiformalism" (Luban, 1996); 

• "a critique of essentialist/conceptualist formalism, and an admonition to avoid excessive theorizing or abstractions," urging "more dialogue, traditionalism, attention to context, and the middle way" (Tamanaha, 1997); 

• the idea that "a satisfactory theory of adjudication for lawyers must enable lawyers to predict what courts will do" (Leiter, 1997·8); 

• "a philosophical discourse that is general, hysteric, external, practical and progressive and beside it a legal antecedent discourse [that of Holmes] that is professional, obsessive, internal, theoretical, and conservative" (Alberstein, 2002); 

• "a disposition to base action on facts and consequences rather than on conceptualisms, generalities, pieties, and slogans ... rejecting moral, legal and political theory when offered to guide legal ... decisionmaking" (Posner, 2003); 

• "an extension of skepticism, ultimately rooted in Greek sophism" (Leaf, 2003); 

• an acknowledgement that "devotion to theory may be just as damaging and unfruitful as devotion to traditional legal formalism" (Weaver, 2003); 

• "an eclectic and self-reflective stance about both theory and methods; a recognition of a plurality of contingent ‘truths’ and 'meanings' that are grounded in concrete experience rather than absolute or fundamental truths; and avoidance of dichotomies and unidimensional approaches and an explicit incorporation of democratic ideals in both the outcomes (goals) of public policy and in the way that policy analysis is itself conducted" (Schneider & Ingram, 2003); 

• the view that "the validity of consensus building depends not on its theoretical possibility of achieving 'win-win' solutions, but on the efficacy of consensus building in its application" (Coglianese, 2003).

Employment Pictures

'Menschenbild: The Conception of the Employee as a Person in Western Law' by Matthew Finkin in 23(4) Comparative Labor Law & Policy Journal (2002) 577-638 comments that

Even as the civil and common law reflect the Western Legal Tradition, they take very different approaches to employee privacy; the former respectful of it, the latter largely not. This divide is explored using Germany and the United States for comparative examination. Relying on a body of German legal historiography, the roots of the law's conception of the person (Menschenbild) is traced from the sixteenth century Natural Law thought, to the Prussian and Austrian Codes of the eighteenth century on through the economic liberalism of the nineteenth century, and so to today. It explains how German law in the period after World War II joined an eighteenth century idea of the person as a bearer of innate, inalienable rights with the idea of the workplace as a social setting in which these rights must be legally recognized. It explains how the United States cabined that very same eighteenth century concept to the political realm, and, in the employment setting, even today remains largely wedded to the nineteenth century conception of the person as the bearer of only the singular right to contract, i.e. tacitly to concede to the employer managerial power to invade the employees' privacy as a component of the wage bargain.

Finkin argues that -

the law of employee privacy sits astride a continental divide. With only modest oversimplification one can say that, on the civil law side, employees are perceived as persons who bear inalienable rights, assertable against their employers, including a right to privacy. Employers may limit their employees’ privacy only insofar as they are able to satisfy a public authority that the limits they seek to impose are narrowly tailored to realize legitimate, even necessary, business objectives. On the common law side, the law accords the employer near plenary power to govern the workplace; in fact, to govern the worker. By entering upon or remaining in employment, the employee is taken as a matter of contract to have assented to the employer’s control. As Clyde Summers put it, with only slight exaggeration, the law “endows the employer with the divine right to rule the working lives of its subject employees.” That power is limited only by occasional and usually highly particularized expressions of public policy, most commonly found in legislation. 

Great Britain is experiencing the centripetal force of moving in the European orbit, as Mark Jeffery explains, and Brazil is tugged in both directions as its economy develops, as Roberto Fragale Filho and Leonel de Rezende Alvim explain. But, in the main, and despite greater or lesser degrees of protection in France, Italy, and Spain, the generalization holds. 

The divide is captured in how these systems deal with an elemental aspect of employee life in the workplace, the freedom to converse with one another. Under French law, an employer’s power over work rules is limited by the principle that it may “not place restrictions on the rights of persons or on their individual or collective liberties unless these are justified by the nature of the work and are proportional to the goal sought.” Accordingly, the Conseil d’État struck down a work rule that prohibited not only political or religious discussion at the workplace, but all non-work related conversation, as an unjustifiable infringement upon individual liberty. In other words, under French law, the plant, office, or shop is a realm in which employees may maintain their sociability, so long as the work gets done. 

In the United States, employers in the late nineteenth century sometimes did forbid workers to converse with one another, on pain of immediate dismissal. Today, federal labor law forbids an employer from prohibiting co-worker conversation, but only as applied to speech on non-work (albeit paid) time when that speech concerns their wages, hours, and working conditions. With few exceptions, that is as far as the law goes. Employees who converse with one another on non-work time, but on other matters may be discharged for the conversation. In other words, subject only to a few narrowly crafted statutory exceptions, an employer in the United States may disclaim that the workplace has any room for human interaction and enforce rules to that effect. 

This state of affairs is perplexing. We take it as a commonplace that there is a Western Legal Tradition that draws from common roots and finds expression in a set of common values, however various the means of implementation. We would take it, then, that when the law on both sides of the Atlantic conceives of the legal attributes of being an employed person it would see pretty much the same thing. But the conception of the employee as a person - the law’s Menschenbild -  in the civil and common law differs and sharply. 

What follows will explore that difference using two countries for more specific examination - the Federal Republic of Germany and the United States. It will next take up the historical development of the law’s Menschenbild from social change beginning in the eleventh century and in legal thought that flowered in the seventeenth and eighteenth centuries. Though the well-spring of modern subjective rights is found in that period, legal theory did not at that time undertake any effort to apply them to the master-servant relationship. On the contrary, in the nineteenth century both Germany and the United States moved toward an economic liberalism that conceived of the employee as an abstract, atomistic entity characterized essentially by the capacity to contract. The sale of one’s labor was thought indistinguishable from the sale of any other commodity even though what was sold came to encompass control not only of the labor, but of the laborer. In the wake of enormous social upheaval in the early part of the twentieth century, both countries instituted collectivist approaches to the employment relationship. These laws conceived of the employee as analogous to a citizen of (or stakeholder in) the employing enterprise. That conception never took deep hold in the United States. It was twisted almost beyond recognition in German law of the Nazi period, but it was refurbished and renewed in German law of the post-War period. In that period, the fundamental differences reflected in the two respective country studies took shape. German judges fused elements of eighteenth century legal thought with twentieth century social thought to produce its current law. The United States remained (and remains) largely rooted in the nineteenth century.

Francis Gurry IP Lecture

Melbourne University has released video of Chief Justice Robert French AC delivering 'A Public Law Perspective on Intellectual Property' - the 2012 Francis Gurry Lecture.

The lecture addresses the intersection between intellectual property and public law. Understanding the importance of this intersection includes an appreciation of how key public law principles apply in the field of intellectual property law. The lecture focuses on three such areas of intersection. The first area is constitutional law: to what extent does the Constitution provide, and limit, legislative power in the area of intellectual property. The second area is the availability of judicial review of administrative action relating to intellectual property. The third area is more abstract, considering what normative rationales have underpinned the development of intellectual property law.

Derivative Citizenship

'When Women Were Aliens: The Neglected History of Derivative Marital Citizenship' (Sydney Law School Research Paper No. 12/47) by Helen Irving notes that

Between the mid-nineteenth and mid-twentieth centuries, in virtually every country in the world, women who married foreign men were stripped of their citizenship, and turned into aliens in their own country. Marital denaturalization laws were supported by the international community until well after the Second World War: single citizenship, family unity, diplomatic convenience, and inter-state comity, were treated as imperatives that overrode women’s independent personal status. Such laws, which expanded at the very time when women were gaining legal and political rights, impacted radically, sometimes tragically, on individual lives, including rendering many thousands of women stateless. This essay gives an account of the emergence and evolution of such laws, with particular reference to Britain and the United States. It provides a ‘snapshot’ of individual cases, and an overview of the international community’s response.

Irving comments that

these laws were not, as might be thought, a feature of the distant past, nor a consequence of the old doctrine of ‘coverture’, under which a woman’s legal identity – her right to hold property, enter into a contract, and assume legal obligations – was subsumed under her husband’s. The derivative character of women’s citizenship is much more recent. Indeed, the laws that forced a married woman to follow her husband’s nationality were passed by democratic parliaments, at a time when coverture had been almost completely abandoned. Decades after the first Married Women’s Property Acts (1839 in the U.S. (Mississippi); 1870 inthe U.K.), the laws governing a woman’s nationality might still have been described in words identical to those of Blackstone in 1769: "By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband". Derivative nationality coincided temporally, furthermore, with the expansion of the political rights we readily associate with citizenship. By the date of Dowson’s letter, women in many parts of the world, including Britain, the Dominions, and the U.S. could vote and stand for public office. A significant number, indeed, were already Members of Parliament. Women were demonstrating their capacity – long impugned by anti-suffragists – to participate as active citizens and to enjoy their new status. But to do this, they had to be – and had to remain - citizens in the first place. 

The fall of the dice depended on love. Under nationality laws that were virtually universal between the mid-nineteenth and mid-twentieth centuries, a woman who married a foreigner became, in her own country, an alien. A woman whose husband - with or without her consent - was naturalised in a foreign country, automatically lost her own citizenship. In most countries, at the same time, a foreign woman who married a citizen was automatically naturalised in his nationality, and a husband’s naturalisation had the same effect. Forsaking all others, in citizenship as in love, the marriage vow was simultaneously an oath of denaturalisation. This, the British government liked to claim, was the practice of ‘most civilised countries.’ 

Stated as such, it sounds simple (if unjust, and certainly inegalitarian: no country made a man’s citizenship dependent on that of his wife). But beyond the question of justice, the operation of the law was, in reality, horrendously complex. The numbers, to start with, were far from insignificant (in 1922, for example, an estimated 30,000 of the alien women living in Britain were British-born, former subjects). The lives of numerous individual women were dramatically affected, sometimes tragically. Although the automatic naturalisation of foreign wives conferred benefits on many, its effect – like the automatic denaturalisation of women who married foreigners - was to subordinate, even infantilise, women as a class, long after they had begun to emerge as political adults. The women ... understood not only the practical, but also the existential injury of derivative citizenship: the psychological affront, even to those who suffered no personal disadvantage. ....

Few  historians  have  recorded  these  events,  and  lawyers' treatises on citizenship rarely  give  them  more  than  a  glance.  Histories  of  international  and  imperial  relations  are   almost  uniformly  silent.  There  are  some  valuable  studies  of  marital  denaturalisation  in   particular  countries,  especially  the  United  States,  but  most  treat  the  law  as  peculiar  to  the   country  in  question.  Few  have  seen  the  larger  dimensions.  ... 

  It  is  a  story  of  the  sacrifice  of  the  identity  (and  often  security)  of  vulnerable   individuals  against  the  interests  (sometime  imperatives)  of  inter-state  relations.  It  is  a  story,   not  necessarily  of  deliberate  hostility  (although  there  was  that),  but  mostly  of  disregard   compounded  by  stereotypes  -  one  that  speaks  acutely  to  our  time.  The  global  movement  of   persons  seeking  refuge  or  reward,  the  persistence  of  statelessness  (which  still  affects  more   women  in  the  world  than  men),  and  the  growing  demands  on  governments  to  accommodate   pluralism,  have  thrown  into  relief  the  importance  of  citizenship  and  the  existential   consequences  of  being  (or  not  being)  a  particular  type  of  citizen.  Ayelet  Shachar  has  called   this 'the birthright lottery' but  it  has  not  been  a  matter  of  birth  alone.  It  has  also  been,   profoundly,  a  matter  of  love  and  of  gender.  When  we  factor  in  the  latter,  we  open  a  window   on  a  human  story,  still  unfinished,  still  relevant,  and  deserving  to  be  known.    

Eugenics

'Buck V. Bell: A Constitutional Tragedy from a Lost World' by Victoria Nourse in 39 Pepperdine Law Review (2011) 101-117 comments that

 Some constitutional tragedies are well known: Plessy v. Ferguson and Korematsu v. United States are taught to every first-year law student. Buck v. Bell is not. Decided in 1927 by the Taft Court, the case is known for its shocking remedy -- sterilization -- and Justice Holmes's dramatic rhetoric: "Three generations of imbeciles are enough." A mere five paragraphs long, Buck v. Bell could represent the highest ratio of injustice per word ever signed on to by eight Supreme Court Justices, progressive and conservative alike. 

Buck v. Bell is not a tragedy as some others might define tragedy: it is not a well-known opinion, nor did it yield wide popular criticism; it sits as a quiet evil, a tragedy of indifference to the Constitution and its most basic principles. To include Buck as a tragic opinion is to recognize what Hannah Arendt once dubbed the "banality of evil." Even if grounded in eugenic assumptions widely held at the time, Buck v. Bell was an utterly lawless decision. Holmes treated Carrie Buck's constitutional claims with contempt. The opinion cites no constitutional text or principle emanating from the text. The only "law" in the opinion must be unearthed from a lost constitutional history embedded in a factual exegesis full of disdain for the Constitution and humanity itself. Few human tragedies can be greater "than the denial of an opportunity to strive or even to hope, by a limit imposed from without, but falsely identified as lying within." A lawless legitimation of such a principle -- one of natural aristocracy -- flies in the face of the very constitutional principles on which our nation was founded.

Enclosure

'The Cloud: Boundless Digital Potential or Enclosure 3.0?' by David Lametti argues that -

 The Cloud presents enormous potential for users to have access to facilities such as vast data storage and infinite computing capacity. Yet the Cloud, taken from the perspective of the average user, does have a dark side. I agree with a number of writers and the concerns that they raise about privacy and personal autonomy on the internet and the Cloud. However, I wish to voice concern over another change. From the perspective of users, the Cloud might also reduce the range of user possibilities for robust interaction with the internet/Cloud in a manner which then prevents users from participating in the internet as creators, collaborators, and sharers. The Cloud is “manageable” in a way the internet was not, and with users increasingly interacting with the internet with relatively less powerful devices than computers – smartphones, tablets and the like – this ability for Cloud service providers to control or manage users is enhanced. 

We owe the vocabulary of “enclosure” to Hungarian-Canadian political economist Karl Polanyi. In his seminal work, The Great Transformation, Polanyi described the enclosure movement in England in which communally integrated and collective farming practices on common lands were suppressed by authorities of the state, forcefully and sometimes brutally, in order to privatize land resources and create the conditions for a market economy in both agriculture as well as other sectors. More recently, the term “enclosure” has been used effectively by American intellectual property scholars such as James Boyle to describe the manner in which intellectual property rules and the concurrent practices of IP rights holders (for copyright, often large corporate interests) in the age of the internet were being used to restrict access to the public domain of ideas or the information commons. 

I argue that the Cloud, unless monitored and possibly directed, has the potential to go beyond undermining copyright and the public domain – Enclosure 2.0 – and to go beyond weakening privacy. This round, which I call “Enclosure 3.0”, has the potential to disempower internet users and conversely empower a very small group of gatekeepers. Put bluntly, it has the potential to relegate internet users to the status of digital sheep. 

By focusing on the entities that provide Cloud services, I argue that we might take steps to encourage or, if necessary, force private entities to keep the Cloud open and accessible in the long term. I also posit the desirability of a publicly-held Cloud to achieve this same end.

Let's not quibble about Polanyi (a vocabulary of 'enclosure' was in use a century before he arrived on the scene). Lametti in discussing a public cloud comments that -

So we must also be open to the possibility of the need to create a publicly-delivered Cloud to allow access to those who either cannot afford to use the privately-held public Cloud or who may not wish to participate under restrictive terms (or run the risk that they will become too restrictive). It would also give a voice to those who wish to maintain the various open software and public domain projects seen thus far on the internet. As such, a publicly-held Cloud does not have to be a massive investment in infrastructure. It is perhaps ironic, however, that the most important function of maintaining some sort of publicly-held Cloud, even if only a small one, is the positive impact that it will have on the privately-held Cloud. A Cloud that is open, inexpensive, flexible and secure is in effect a competitor in providing services on the Cloud and will hopefully encourage similar features throughout the Cloud. 

For the time being, in skeletal form, I would argue that the publicly-held Cloud needs to be created, bolstered and maintained by:

•  providing resources to public actors (like universities) for building the computing and storage infrastructure to create and maintain a minimal, publicly-delivered Cloud service; 

• encouraging open software, open access, open knowledge and digital sharing movements to continue; and to provide Cloud services where possible; 

• where necessary, encouraging or forcing universities and other agencies funded by the state to maintain a Cloud, providing the various kinds of Cloud services (SaaS, IaaS, PaaS) directly to not only their staff and students, but to the wider community; and 

• perhaps using public-private partnerships (PPPs).

Admittedly, this last scenario is a more challenging option, but might nevertheless be appropriate in those contexts where states do not have the capacities in their public institutions to provide internet and Cloud services. It may also be the case – as has been the case in the varied contexts and economic histories of many countries – that the quango (or quasi-autonomous state agency, Crown corporation, etc.) is the appropriate tool for the development of this critical resource. No good idea for a hybrid solution should be rejected a priori. Different countries might find different solutions depending on their policy contexts. 

Moreover, I would argue that governments need to ensure that the privately-held Cloud remains accessible by:

• mandating and implementing the highest standards of interoperability in Cloud technology, encouraging the use of open platforms and open access software, and barring attempts by individual providers to lock their systems; 

• protecting users from monopolistic business practices through competition and consumer law; 

• requiring privately-delivered Cloud service providers to make space available to community driven projects such as Ubuntu 1; 

• mandating and implementing the highest privacy standards perhaps via a user’s bill of rights; and 

• mandating the highest standard of basic user rights, again perhaps via a user’s bill of rights.

Further, as far as possible, it would be beneficial to make the privately-held Cloud conform to these last desiderata, either through positive legislation or incentives. As regards the architecture of the publicly-held Cloud, the availability of resources (human know-how, physical infrastructure and ongoing financial resources) is necessary. The key may very well be in “reminding” universities and public research centres of their public vocation, which in Europe, Canada and the US could work effectively, provided that the resources to maintain the public Cloud are indeed furnished. But the use of universities, for example, does not preclude other loci for the provision of cloud computing capacities. Collaborations among governments, say the EU and Canada, for example, might be encouraged to build facilities – built and perhaps operated jointly – in northern climates that are both cold enough to cool and are close to clean sources of electricity; resources currently necessitated by Cloud server technology. 

I am aware that governments have not always been the most virtuous players on the internet. They have blocked access to the internet, and its content, and even governments generally considered to be “responsible” and “democratic” have used it for surveillance purposes. Indeed, in some places it is clear that governments ought best be feared. Hence, there is also a serious, related concern with the possibility that governments may use the potential controllability of the Cloud as an efficient means to gather information about individual users for a variety of purposes. Acknowledging this fact, I would still maintain that a collaboration between accountable governments and government institutions, on their own or with the private sector, could set a high ethical standard for internet and Cloud participation. 

Thus, in the end, polycentric solutions – private, directly provided government services, and indirectly “government-encouraged” services by public, quasi-public and even private actors – will form a part of the mix in keeping the Cloud’s gates from being controlled by private Cerberus. Of course this means that governments will need to take a proactive role domestically, and cooperate at an international level. But hopefully even the most minimalist political ideology will (1) see the importance of this role for the development of its own citizenry and economy, and (2) find within the various governance options ones that it can implement according to its own philosophy.