Terrestrial Law v Cyberlaw, A Tamil Tale – The Saga of The South Continues in The New World
It was amazing to get this email from you just as I was shooting out an unusually heavy email laden with letters and images. Yes, it’s been sizzling and all I have done through the month of May here in Delhi is to either sit directly under the air conditioner in front of my laptop, or immerse myself in the cool pool of my gym. I have been writing continuously even if I haven’t yet put it down in text form. I have found swimming the most effective place and time to pen a letter as that is one space where there is complete silence.
Tara arrives tomorrow and I just can’t wait to see her. I am also planning a trip to Singapore early August as Dhruvum will be doing an SAT course there, and then playing with the idea of making it back to California this October for the annual California Bar conference. That would give the required continuing education classes I need as well as the chance to get myself out of the cave and back into the mainstream legal world. I am also hoping in this trip to meet with Forrest at the Asian Art Museum in San Francisco, who responded very warmly inviting me for lunch to meet with his colleagues to further discuss the Ramayana epic project. However, there was no response, no mention about my grand proposal to connect the cultures of the East and the West, from Japan to the British Isles, so even though he has very warmly invited me to meet him, it seems like he has other pressing matters and so has put my proposal aside, I feel he is missing the forest from the trees! Oh Roger, you know I absolutely had to add that quip, how can I become completely sober and resist being me. In any case, I’m very much looking forward to that meeting, fingers crossed.
Well, since it’s a 120 degrees outside, and there is absolutely no place to go, and my computer screen looks cool and welcoming, I’m going to place myself besides it, and continue with my mental regurgitations.
Ok, so I’m back in the cyberworld and reading everything i can get off the internet relating to “Earth” bound laws being thrust upon randomly across issues relating to cyberspace. As I had mentioned in numerous prior occasions, I don’t believe it is exactly, or directly translatable, and cannot be arbitrarily imposed. I believe we need to get a consensus from the cyber realm before imposing earth bound laws upon it. In any case Roger, which laws would you impose, Civil Code or Common Law, or perhaps state specific code (California law perhaps since this appears to be the residence of choice for all the gods and demons of the cyberworld), which specific nations can assert and impose their laws and how would that be determined? Would jurisdiction and liability be determined on the location of the violating device, the individual (if that can be identified) or the location of the server? There are a gazillion unanswered questions and I can keep going… but I suspect no one will get anywhere unless we get a consensus from the netizens themselves or their representatives, who i believe are currently the Pirates of the Cyber Realms. And in order to get a consensus from the pirates, we’ve got to think out of the box, or “Nation State”. I know I’m sounding like a scene from a popular movie, but this is real (or virtual however you like to call it), and it’s pivotal that we start to define these cyber standards.
I’d like to share the following two articles to further highlight my point that the denizens of the cyber realm are rising, protesting, and will soon not accept the arbitrary earth bound laws imposed upon them.
As someone who was raised and educated abroad, the more I delved into it, the more it blew my brains: The first case related to freedom of expression as outlined in the first amendment to the US constitution. See the First Amendment overview below from the Legal Information Institute):
The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. See U.S. Const. amend. I. Freedom of expression consists of the rights to freedom of speech, press, assembly and to petition the government for a redress of grievances, and the implied rights of association and belief.
The LII goes on to elaborate that though the legal definition of obscenity has been hard to establish it lists the following category of speech unprotected by the first amendment:
Currently, obscenity is evaluated by federal and state courts alike using a tripartite standard established by Miller v. California 413 U.S. 15 (1973). The Miller test for obscenity includes the following criteria: (1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.
Now it is here in “contemporary community standards” that we have a very broad and ever evolving spectrum. So long as pornographic materials were limited to traditional modes of dissemination like print it was thereby limited to a certain geographic area, it was easy to determine that community standard, but now with the all-pervading internet that has access to ever home and pocket, across all genders and demographics, unlimited by national, or other traditional gateways or boundaries of codes, customs, and indigenous expression, determining contemporary community standards has become infinitely more of a challenge. Again, the question arises as to what these standards depend upon, and who is designated the arbiter of “standard” in the cyber realm.
Speech based freedoms which have repeatedly been upheld by the US supreme court, in my opinion are one of the most enlightened liberal and all encompassing freedoms provided to mankind. As someone who was raised and educated abroad, the more I delved into it, the more it blew my brains, it’s wholly inconceivable for most parts of the world to even fathom that these freedoms can exist, and here not only do they exist but are routinely enforced and upheld. It’s uncanny to see that however diverse the justices of the US Supreme Court (left, right, centre) may appear, applying the highest scrutiny to any transgression to the same, they almost always unanimously vote to uphold it. In my opinion if there is something worth protecting on earth, it is this, this, this!
Do see People v Larry Flynt, I must admit I thoroughly enjoyed it I only wish it discussed the legal issues more in detail. Link below:
So, back to the ambiguity that exists in the cyber realm, at this juncture, it is being resolved by these earth based laws, but I suspect it will not be supportable in the long run. It’s imperative that this all expansive protection be interpreted for the cyberworld and gain the consensus it demands and then provide all the freedoms that a select group have been able to carve out for themselves on this earth.
See case copied from Netlitigation.com, United States v Thomas, at the end of the email where community standard was challenged and instead it was proposed that the case be decided upon “cyber community standard“.
The second piece that jumped out as me and got my gullet as I was languorously surfing the web trying to keep my vision focussed in this 120 degree weather, was an article by Jonathan Bick on the Internet User’s Duty of Care (Cybersecurity and New levels of Online Liability). See article pasted at the end of email if you can’t open link below:
View the full article here:
This excellent and very persuasive piece highlights what the pundits of the Earthly realm believe relating to the enforcement of Earth bound laws in cyberspace, in this instance the law of Torts (negligence), that the potential liability will enforce vigilance among the computer users. He goes on to say:
“While certain bad actors trick Internet users into installing software that harms other Internet users, most of the harm to other users is due to intentional or negligent acts by individual users, even if the harm is actually a byproduct of the acts. Internet users expose other users to harm when they intentionally disable security software, so as to improve the speed of their uploads and downloads. Or they negligently employ vulnerable passwords or engage in risky behavior, such as downloading questionable material, such as free copyrighted content (e.g., music, videos or games).”
“Tort law evolved to protect the public against new dangers arising from new technology. Negligence emerged as the liability standard for non-intentional injuries caused by new technology.”
“Courts have had little difficulty extending liability for bad software when the design defect causes physical injury or death. A New Jersey court applied product liability law in a case in which the brakes of a tractor-trailer failed because of defective software on the vehicle’s onboard computer. See, Roberts v. Rich Foods, 654 A.2d 1365 (N.J. 1995).”
“Both an Internet site operator and an Internet user could potentially be held liable for negligently permitting a third party to access its computer and copy data or proprietary information owned by others where that inadequate security results in injuries to third parties.”
My response to the above was explosive to say the least, it jolted me out of head spinning heat, and got me reading and rereading the text. Whaaaaaat…is being proposed here?!? It looks like he is proposing that protections afforded to owners of real property and chattel be extended unaltered and arbitrarily across the internet to all kinds of “ownerships/possessions”, it also seems as though he believes that product liability laws that govern the earthly realm where they are connected to software translates into software programs and Net enabled IT! Oh Roger, please help me but it must be the heat or I am grossly mistaken. Well this was my knee jerk response upon reading this excellent article (a must read to know what the gurus are thinking):
Can of Worms- directly translating Earth bound laws to apply universally across the internet. Wake up and smell the cyber-stink!
In my opinion, the faulty software on the tractor resulting in liabilities as referenced in the article above is completely comprehensible, but remember this is merely software running on a machine that is earth bound, this does not apply to software on the Net! For the moment the software package is linked online, it becomes a part of the cyber-realm and even if it used to run the tractor that operates on Earth, the laws governing it are not so straightforward. Unlike the above clearcut case of faulty software onboard a tractor, where the laws governing it and the resulting liability is clearly defined by a long history of product liability laws, the moment this software is linked (not to an internal LAN system restricted to that corporation) but linked to the WWW, the laws that govern liability move outside the physical realm to the cyber-realm. And the laws of the cyber realm DO NOT correspond necessarily to the laws of the Earthly realm. What freaked me out completely was the application of the tort of negligence directly upon the interactions in the cyberworld, holding each netizen liable to third parties (ie) the world for being negligent towards his own security (not adequately securing his/her computer against viruses, downloading from dubious sites etc). I danced in the rain and now am liable to the whole wide world for passing on the common cold!!! Where does this liability end…”am I permitted a sneeze in this one space I have carved out for myself, or do the ominous omnipresent and restrictive laws of Big Brother permeate here as well” is what the Netizens will CRY out loud. There obviously needs to be a code for the cyberworld, but imposing the Earth bound code of laws directly and without either thought of the nature of this space nor consensus from the denizens of this space would be a frustrating foolish and futile attempt by any government.
I’m not sure if I should be ending that with a Ho, Ho , Ho and a bottle of rum…but you’re certainly Not going to find me on Professor Bick’s boat!
Ok Roger, now that I have got that heavy stuff off my chest i’m kind of raring to plunge down memory lane (yes, its somewhere in the dark depths of the ocean in another realm). See below The Tamil Theatre
I sit incredulously on my opium bed on which rests my teak writing tray table and journey back through time to my wedding day.
In my last email was attached a wedding photo of Purnima and Mirko bedecked in jewels and silk, glowing and happy awaiting to embarking on a new life in a new world far, far away.
The Saga: Mirko as you know was a New York banker and even though he was of Indian origin he had barely spent anytime in India. He had lived studied Europe and America but had returned to India to marry his Indian bride, that was an enigma in itself. We met a handful of times, the families had known each other over three generations, with my grandfather working under his grandfather in the Indian Civil Service, and his father, my father-in-law, working under my uncle in the Indian Foreign Service (still remembered as the greatest rivalry in the foreign service which caused huge protocol issues at the time of the two families meeting and garlanding each other at the wedding). But most of all his incredibly brilliant uncle Uma Shankar was my grandfather’s “bestie”. I had met him at home on a number of occasions and seen my living room light up as the two brilliant men sat together over bottles of scotch of course and reminisced the Raj, their spectacular careers in the foreign and civil service and the story of India. Their wives were close friends and my grandmother often exclaimed that Uma’s wife was among the most beautiful women of India, I only wish I had images to share. That story is also long and tragic and I will leave it to my children to fill in the pages of their family. So in the midst of close friendships and great rivalries this bond was forged. How marital relations are forged between two rival factions, families and kingdoms, is the subject of another email but it has happened through time and we just have to look at the Chinese who send their princesses north across the wall (Vindhyas in my instance)into the hands of the fierce tribes of the North, see below Wang Qiang on Her Way To The Khan of The Xiongnu from The Asian Art Museum, San Francisco:
Thus I found myself bedecked from head to toe sitting on my marital bed in front of a man I barely knew. Mirko stared at me for a while and then… you won’t believe what me asked me on the marital bed on my wedding night… “Can you bop your head side to side for me“? “What?”, I exclaimed, not really understanding the question, until he repeated it twice. Here I was a south Indian bride, and he believed all south Indian girls could bop their heads side to side, yes just like a typical “Indian doll”, and he wanted to see me do that. See link below of Tanjore terracotta doll:
Tanjore Dancing Doll – https://youtu.be/P2ibK558Ur4
Of course I couldn’t believe my ears, there were jumbo signs flashing saying “MISTAKE” and “RUN“, after 18 years of education, a semester before I was to graduate from law school, I was sitting on the bed bedecked at a bride in front of a strange man with an American accent who was asking me to bop my head side to side. And so began the saga …
Highlighting the theatre that was to unravel as my life, with a stranger from another universe, the scene opens in New York City. Our charming old brown stone on the upper east side of Manhattan adjacent to the Guggenheim was a dream, but the man was far from that dream.
He should have laughed when I made zucchini sandwiches for our picnic in central park (I had never entered the kitchen before so knew no better); He found no humor when I literally flew in for Dinner at Le Cirque, “I flew” because I was struggling with the 7 yards of a silk saree on stilettos and found myself temporarily airborne, finally steadying myself I ordered my meal and of course I requested for crushed red pepper, I’m a southern belle, the chef arrived in a tizzy at our table (I suspect he arrived to see the dramatic Indian lady draped in a saree) seeing all the fuss that was created I turned to find Mirko beetroot red with the fourth of July fireworks exploding out of his head fearing yet another scene…
Then there was the incident in Paris…I was out sightseeing and was told to get to a certain place for dinner at a certain time, with the emphasis on time, I arrived at La Tour d’Argent, in my black leather biker jacket and boots to find at the table the ambassador and his wife among other guests dressed in silk and pearls, of course there was a nuclear explosion but I plead innocent as I was not informed. These stories are endless and perhaps entertaining but the eight years in California were no joke, by then Oberon had become Bottom and there was no going back.
La Tour d’Argent: https://www.cntraveler.com/restaurants/paris/la-tour-dargent
Le Cirque NYC:
My theatrical entrance draped in multihued south Indian silk certainly fit right into Mr Maccioni’s arena – a quote from the article above- “I encouraged beautiful people, interesting people, people of different races and colors,”
This was all my paternal grandmothers grand plan, The Swan of the East, whom my in-laws much admired and respected. See below my grandmother Kowshiki, The Swan of The East:
She had know the family for generations and was close to over the moon having found The Suitable Boy. From the time I remember she had wanted a little girl in the family. She used to endlessly lament that her daughter Kadambari did not try for a daughter (as though it was guaranteed), and then it was the turn of my cousin, Kadambari’s son, and once again there were two boys, so by the time she got to me she prayed passionately to realize her dream and her dream for me.
The Tamil Story: There is a long historic background to this story, and it is entwined with the Tale of the Tamils. My paternal grandmother Kowshiki came from one of the most recognized musical families of South India. I can trace back our ancestors to the 1700’s, her father, my great grand father, S. Duraiswami Iyer, was a renowned lawyer in Madras, a revolutionary fighting for India’s independence from British Raj, and a great patron of the arts. His maternal grandfather was Tiruvottiyur Tyagier (1845-1917), a celebrated composer. Tyagier’s father was ‘Veena’ Kuppayyar (1788-1850). He was a direct disciple of Tyagaraja, arguably the greatest composer of Carnatic music.do see link pasted below:https://sriramv.wordpress.com/2012/12/18/music-to-dust-the-house-of-tiruvottiyur-tyagier/
My great grandfather S Duraiswami Iyer’s (see attached image) passion for freedom resulted in a terrible tragedy for my grandmother as her family was first separated and then she lost all her siblings one by one.
He sent his wife, my great grandmother to the Aurobindo Ashram in Pondicherry, she left with a baby in her arms (supposedly for her protection as he was constantly under surveillance by the British agents, and Pondicherry was a safe haven as it was under French jurisdiction), where she at the age of 27 had to drape herself in a white saree and hand over all her jewelry. The bride of a home and a family that would have traditionally been covered in silk and bedecked from head to toe in jewelry, she left her palatial home in Madras to occupy meagre accommodations, a small room in the Aurobindo Ashram in Pondicherry as one of the sadaks or disciples of the ashram.The infant in her arms, baby Rudra, did not survive the year in the ashram. Her life replete with its tragedies is the subject of another book and makes me more determined in my outlook that the freedoms we (women)take for granted in this day and age are but ephemeral if not reaffirmed, reinforced and upheld at every juncture, so that we may voice our opinions, stake our claim, extend our protections not only to ourselves but those under our care and vehemently reject being being treated as chattels vociferously disregarding the bindings imposed by tradition, culture and society. Oh how I wish I were there in Old Madras to advocate for my great grandmother Meenaskshi with a voice that stood firm, equal and opposing to my great grandfather S. Duraiswami Iyer!
See below my great grandmother (sitting second from left) at The Aurobindo Ashram in Pondhicherry, India with the other sadaks, Ashram inhabitants, who were extensions of her spiritual family and the foundation she rested upon for comfort and support:
See below snapshots of Pondicherry, The Aurobindo Ashram in Pondicherry and the street and home where my family lived in Pondicherry, India.
My grandmother Kowshiki’s entire family was scattered, sent to different homes while their palatial home, horse buggies and staff stood with my great grandfather who was a prominent advocate of the Madras High Court at it’s head hosting the revolutionaries and friends of Swaraj or self government in Madras and clandestinely funneling funds to the revolutionaries. Out of the five children of S.Duraiswami Iyer, my grandmother was the sole survivor, and she often reminisced about her ancestral home Palm Court, and her siblings especially her favorite, her brother Thyagarajan who joined the RAF during his studies in London and was shot over Normandy on the day Paris was liberated. Having lost so much so early in her life because of the high ideals of her family members that sacrificed themselves on the alter of patriotism, truth, justice and freedom, she yearned for something earthly a reminder in the form of a child of her family that was no more. I loved my grandmother more than anything and I wanted to realize her dream.
My grand uncle Tiger Tyagarajan (The RAF Pilot seated on the engine cowl):
Palm Grove-Old Madras Homes (See link to Palm Grove in Madras Musings Below)
See pasted below a link of Palm Grove, my grandmother home and the home where my father (Vijay Kumar Viswanathan, see attached), his sister Kadambari and his brother Priya Viswanathan was born.
I was told by my grandmother who had the fondest memories of this almost 130 year old home with airy balconies, 40 foot ceilings and beautiful wrought iron grills, a home that saw much song, dance and theatre of the south as artists and musicians were often housed and taken care of by her father. Subramanium Bharati used to sing out loud in its halls glorious songs of patriotism, sages, saints and philosophers were frequent guests. She remembered sitting on Ramana Maharishi’s lap right here, my great grand father was a huge devotee. And all of it just vanished, my great grand father gave up the shirt off his back, his assets, land, home property to the Aurobindo ashram and the freedom struggle and he retired to Pondicherry to live out his life in memories. Roger, here in the north of India, you don’t hear the stories of the southern revolutionaries. In his instance, I guess his story will be found in the French archives, as the British would not necessarily highlight the saga of those that so flagrantly rebelled against their authority. See below the link for Palm Grove:
And then…Tara was born, the Swan’s Dream. Do see attached two pictures of Tara in California, one in an Indian dress (where she looks like the picture postcard of my paternal family) and one in a white birthday dress handing out her heart. My grandmothers seed and the story of her family continued in California. I remember the day I came to my grandmother with Tara in my arms, she was brimming with joy but at first would not let me just hand her over. She first straightened her dress, said a small prayer and then was ready to receive Tara who she held up (like a scene from the Lion King), and declared she was Krishnaa the expression of love and beauty.
Tara as Krishnaa the expression of love and beauty in California, USA:
Tara offers her Heart and This Theatre of The South Lives For Another Day in The New World:
I wish to share with you her favourite hymn Bala Mukundashtakam “Kararavindena Padaravindam” which describes the beautiful form of lord Krishna with hands like the lotus holding his feet like the lotus, with lips like the bimba fruit and teeth like pearls. I can hear her sing it with all the members of the family. This much beloved hymn came to life for me through Tara. See link for hymn below:
Bala Mukundashtakam: www.youtube.com/watch?v=_ThnAQ71OTU
And with that Roger, I will end the saga for today but I am attaching a photograph of my grandmother, The Swam of the East, at the age of 77, the same profile that the artist in Lahore had sketched forty years earlier (overlaying her Indian bun with a Parisian hairstyle). I guess the first claim to possession is recognition, the artist seeing a familiar form in her image, recreated it with stylized hair. And expressed through his art she remains in our memories eternal and exquisite forever.
Kowshiki – The Swan of The East
The Swan Ages Gracefully – See below my grandmother Kowshiki in her late 70’s draped in a saree looking as elegant in her golden years as in her youth. And thus this Tamil Tale – The Saga of The South as it fades from memory in the old world, it takes new life and continues in The New World!
All persons, places, events are fictitious; all imputed relationships purely aspirational. There were no men harmed during the penning of the Feminist Manifesto