Urs Gasser, What is Information Law – and what could it be?, in: Urs Gasser (ed.), Informa-tionsrecht in «e»-Umgebungen, pp. 7–24 (Baden-Baden/Zurich 2002).
Gasser – what Is Information Law
Background
The text of Urs Gasser is published in a volume of collected working papers that were presented at the Forum for European Information Law in Nuremberg/Germany in September 2001. The contained articles provide for a manifold of different perspectives from different backgrounds and contribute to a fascinating and diverse discourse on what is termed «information law».
At that time Urs Gasser was working at the law faculty of the University of St. Gallen as the director at the Research Center for Information Law. The research centre, which he co-founded with Jean Nicolas Druey and Herbert Burkert, has devoted much emphasis to the development of basic structures for information law. The article of Urs Gasser can be considered to be the key contribution to these efforts.
After he graduated in 2003 from the University of St. Gallen, Urs Gasser joined the Berkman Center for Internet & Society as a research fellow, returned to St. Gallen as an associate professor from 2006–2009 and was than appointed as the executive director of the Berkman Center (apart from being a Professor of Practice at Harvard Law School). Gasser has become one of the most prominent scholars in information law and in Internet law during the last ten years, being involved in manifold multi-disciplinary research projects.
The presented contribution of Urs Gasser, published at the beginning of his career, can be seen as a highly convincing «inaugural piece».
Summary
The article of Urs Gasser begins with a discussion of the concept and object of information law. After overcoming the first technology-related steps, a broader understanding of information law has become prevalent, including the process of communication and the relation between people and information. Subsequently, researchers – mainly in Germany – have developed the concept of an information order or even a knowledge order. This development has gone hand in hand with a broadening of the range of topics encompassing the following: the infrastructure debate that concerns the market-friendly ordering of communications-infrastructure networks; the content debate that covers illegal and injurious Internet content and the appropriate mechanisms of control; the ownership debate that is directed at the future of property rights and similar material claims; the identity debate that takes as its central theme the legal acknowledgement of identity in complex technologically-mediated communications situations; the data protection debate that comprises a broad spectrum of questions, notably the law of personality; the e-democracy debate that addresses governmental issues; and the ethical debate that concerns the relationship between the law and non-legal rules of conduct.
Thereafter, Urs Gasser looks at the so-called «St. Gallen Research Approach of the Information Law». In this approach information law is seen as a phenomenon that raises fundamental questions regarding the possibilities of the legal coverage of information and communication, dealing with a many-layered, thematically wide-ranging discourse based on a specific phenomenon stamped way of looking and arguing. The key messages of this approach can be summarised as follows: (i) Information law is a cross-sectional matter. (ii) Information is an interdisciplinary way of looking at things. (iii) Information law is a blend of legal and phenomenological ways of looking at things. (iv) Information law is part of the legal system. (v) Information law is law in fields of tension.
Subsequently, Gasser illustrates the «St. Gallen Research Approach of Information Law» by discussing three concrete examples; namely, the problem of causation (thereby relying on his doctoral thesis on causation and allocation of information as legal problem, published in 2002), the problem of information overload (in the form of «data smog») and the problem of law making and its limits (comparing normative expectations with disappointments in reality).
In sum, Urs Gasser understands information law «as a specific phenomenon-stamped legal way of thinking, of looking at things, and of arguing that through its special lens makes latent questions and problems visible and suggests starting points for tackling such questions in a phenomenologically appropriate fashion» (p. 24).