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Book of the Day: Cyberspace and the Self-Management of the Self | P2P Foundation
Using this new approach, we would no longer ask the unanswerable question "where" in the geographical world a Net-based transaction occurred. Instead, the more salient questions become: What rules are best suited to the often unique characteristics of this new place and the expectations of those who are engaged in various activities there? What mechanisms exist or need to be developed to determine the content of those rules and the mechanisms by which they can enforced? Answers to these questions will permit the development of rules better suited to the new phenomena in question, more likely to be made by those who understand and participate in those phenomena, and more likely to be enforced by means that the new global communications media make available and effective.
Treating Cyberspace as a separate "space" to which distinct laws apply should come naturally, because entry into this world of stored online communications occurs through a screen and usually a "password" boundary. There is a "placeness" to Cyberspace because the messages accessed there are persistent and accessible to many people. You know when you are "there.
To be sure, Cyberspace is not a homogenous place; groups and activities found at various online locations possess their own unique characteristics and distinctions, and each area will likely develop its own set of distinct rules. But the line that separates online transactions from our dealings in the real world is just as distinct as the physical boundaries between our territorial governments--perhaps more so. Crossing into Cyberspace is a meaningful act that would make application of a distinct "law of Cyberspace" fair to those who pass over the electronic boundary.
What should happen when conflicts arise between the local territorial law applicable to persons or entities by virtue of their location in a particular area of physical space and the law applicable to particular activities on the Net? The doctrine of "comity," as well as principles applied when delegating authority to self-regulatory organizations, provide us with guidance for reconciling such disputes. The doctrine of comity, in the Supreme Court's classic formulation, is "the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protections of its law.
It is incorporated into the principles set forth in the Restatement Third of Foreign Relations Law of the United States, in particular Section , which provides that "a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable," and that when a conflict between the laws of two states arises, "each state has an obligation to evaluate its own as well as the other state's interest in exercising jurisdiction [and] should defer to the other state if that state's interest is clearly greater.
It arose as an attempt to mitigate some of the harsher features of a world in which lawmaking is an attribute of control over physical space but in which persons, things, and actions may move across physical boundaries, and it functions as a constraint on the strict application of territorial principles that attempts to reconcile "the principle of absolute territorial sovereignty [with] the fact that intercourse between nations often demand[s] the recognition of one sovereign's lawmaking acts in the forum of another.
Accordingly, it may be ideally suited to handle, by extension, the new conflicts between the a-territorial nature of cyberspace activities and the legitimate needs of territorial sovereigns and of those whose interests they protect on the other side of the cyberspace border.
This doctrine does not disable territorial sovereigns from protecting the interests of those individuals located within their spheres of control, but it calls upon them to exercise a significant degree of restraint when doing so. Local officials handling conflicts can also learn from the many examples of delegating authority to self-regulatory organizations. Churches are allowed to make religious law. Clubs and social organizations can, within broad limits, define rules that govern activities within their spheres of interest.
Securities exchanges can establish commercial rules, so long as they protect the vital interests of the surrounding communities. In these cases, government has seen the wisdom of allocating rule-making functions to those who best understand a complex phenomenon and who have an interest in assuring the growth and health of their shared enterprise. Cyberspace represents a new permutation of the underlying issue: How much should local authorities defer to a new, self-regulating activity arising independently of local control and reaching beyond the limited physical boundaries of the sovereign.
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This mixing of both tangible and intangible boundaries leads to a convergence of the intellectual categories of comity in international relations and the local delegation by a sovereign to self-regulatory groups. In applying both the doctrine of "comity" and the idea of "delegation" to Cyberspace, a local sovereign is called upon to defer to the self-regulatory judgments of a population partly, but not wholly, composed of its own subjects.
Despite the seeming contradiction of a sovereign deferring to the authority of those who are not its own subjects, such a policy makes sense, especially in light of the underlying purposes of both doctrines. Comity and delegation represent the wise conservation of governmental resources and allocate decisions to those who most fully understand the special needs and characteristics of a particular "sphere" of being. Although Cyberspace represents a new sphere that cuts across national boundaries, the fundamental principle remains.
If the sysops and users who collectively inhabit and control a particular area of the Net want to establish special rules to govern conduct there, and if that rule set does not fundamentally impinge upon the vital interests of others who never visit this new space, then the law of sovereigns in the physical world should defer to this new form of self-government.
Because controlling the flow of electrons across physical boundaries is so difficult, a local jurisdiction that seeks to prevent its citizens from accessing specific materials must either outlaw all access to the Net--thereby cutting itself off from the new global trade--or seek to impose its will on the Net as a whole. This would be the modern equivalent of a local lord in medieval times either trying to prevent the silk trade from passing through his boundaries to the dismay of local customers and merchants or purporting to assert jurisdiction over the known world.
It may be most difficult to envision local territorial sovereigns deferring to the law of the Net when the perceived threat to local interests arises from the very free flow of information that is the Net's most fundamental characteristic--when, for example, local sovereigns assert an interest in seeing that their citizens are not adversely affected by information that the local jurisdiction deems harmful but that is freely and lawfully available elsewhere.
Examples include the German government's attempts to prevent its citizens access to prohibited materials, or the prosecution of a California bulletin board operator for making material offensive to local "community standards" available for downloading in Tennessee. Local sovereigns may insist that their interest in protecting their citizens from harm is paramount, and easily outweighs any purported interest in making this kind of material freely available.
But the opposing interest is not simply the interest in seeing that individuals have access to ostensibly obscene material, it is the "meta-interest" of Net citizens in preserving the global free flow of information. If there is one central principle on which all local authorities within the Net should agree, it must be that territorially local claims to restrict online transactions in ways unrelated to vital and localized interests of a territorial government should be resisted.
This is the Net equivalent of the First Amendment, a principle already recognized in the form of the international human rights doctrine protecting the right to communicate. Participants in the new online trade must oppose external regulation designed to obstruct this flow. This naturally central principle of online law bears importantly on the "comity" analysis, because it makes clear that the need to preserve a free flow of information across the Net is just as vital to the interests of the Net as the need to protect local citizens against the impacts of unwelcome information may appear from the perspective of a local territorial sovereign.
For the Net to realize its full promise, online rule-making authorities must not respect the claims of territorial sovereigns to restrict online communications when unrelated to vital and localized governmental interests. One of a border's key characteristics is that it slows the interchange of people, things, and information across its divide. Arguably, distinct sets of legal rules can only develop and persist where effective boundaries exist. The development of a true "law of Cyberspace," therefore, depends upon a dividing line between this new online territory and the nonvirtual world.
Our argument so far has been that the new sphere online is cut off, at least to some extent, from rule-making institutions in the material world and requires the creation of a distinct law applicable just to the online sphere. But we hasten to add that Cyberspace is not, behind that border, a homogeneous or uniform territory behind that border, where information flows without further impediment. Although it is meaningless to speak of a French or Armenian portion of Cyberspace, because the physical borders dividing French or Armenian territory from their neighbors cannot generally be mapped onto the flow of information in Cyberspace, the Net has other kinds of internal borders delineating many distinct internal locations that slow or block the flow of information.
Distinct names and virtual addresses, special passwords, entry fees, and visual cues --software boundaries--can distinguish subsidiary areas from one another. The Usenet newsgroup "alt. Users can only access these different forums through distinct addresses or phone numbers, often navigating through login screens, the use of passwords, or the payment of fees. Indeed, the ease with which internal borders, consisting entirely of software protocols, can be constructed is one of Cyberspace's most remarkable and salient characteristics; setting up a new Usenet newsgroup, or a "listserver" discussion group, requires little more than a few lines of code.
The separation of subsidiary "territories" or spheres of activity within Cyberspace and the barriers to exchanging information across these internal borders allow for the development of distinct rule sets and for the divergence of those rule sets over time. The internal borders within Cyberspace will thus allow for differentiation among distinct constellations of such information …. Content or conduct acceptable in one "area" of the Net may be banned in another.
Institutions that resolve disputes in one "area" of Cyberspace may not gain support or legitimacy in others. Local sysops can, by contract, impose differing default rules regarding who has the right, under certain conditions, to replicate and redistribute materials that originate with others. When Joan logged in it was , and women chatting was unusual.
It still is so unusual, in fact, that even today whenever someone logs on as a woman there is a barrage of questions in order to determine whether it really is a woman, or someone just trying on a new sex for size. It is a kind of harassment that people logging on as men or animals do not experience. Furthermore, Alex chose to make Joan the epitome of vulnerability. Perhaps whetting desires even more by making her paralyzed and mute. The fictional presumption was that in real life she had lost her body, yet she could still be seductive.
In fact she could even lure her responders, like the Sirens calling Odysseus, into lustful responses to her non-body. In February , a housewife signed up for a computer service to access information and make friends. She found she was able to form onlinee relationships that quickly became intense. She could form close connections that were hard to make in the busy world of real life. However, very quickly "she found herself the target of an invisible high-tech predator who threatened to become an all-too-real menace to her children".
She began to have vile, unsolicited messages from someone known as Vito. She had no idea if Vito was a man or woman, a friend of her children and family or a psychotic maniac. Vito was able to tap into all of her messages, get a bit by bit profile of her and post wider messages to all Internetters. The targeted woman complained that it was like "rape". Again without a body. She sought out a computer crimes detective. Vito became well known, even infamous. Many people claimed to be him, just as many people claim to have committed the crimes of Ted Bundy. When a suspect was finally arrested, the District Attorney was forced to release him because of "insufficient evidence".
Which brings up the question of how to bring law and order to the information superhighway, a place where villains are invisible and users become unwitting victims in crimes of the non-body. The Electronic Frontier is attempting to do this and have been enormously effective since their creation. A self-sponsored group, they are like what Ralph Nader was to ecology; a hacker posse who round up, capture and hold virtual vigilantes accountable.
These not only include hackers. They have also questioned the computer and privacy invasions launched by the United States Government.
New users are forming the largest immigration in history. What happens to this population's non-body is of critical importance. Case 3: Terra About , Tom Ray created a virtual computer that had evolved creatures. As Kevin Kelly notes, in his book Out of Control , "Beginning with a single creature, programmed by hand, this 80 byte creature began to reproduce by finding empty RAM blocks 80 bytes big and then copying itself. Within minutes, the RAM was saturated with replicas.
By allowing his program to occasionally scramble digital bits during copying, some had priority. This introduced the idea of variation and death and natural selection, and an ecology of new creatures with computer life cycles emerged. The bodies of these creatures consisted of program memory and space. A parasite, this creature could borrow what it needed in the RAM to survive. Furthermore, to everyone's astonishment, these creatures very quickly created their version of sex--even without programming! Sometimes in "Terra" which is what Ray called this system a parasite would be in the middle of asexual reproduction genetic recombination , but if the host was killed midway, the parasite would assimilate not only that creature's space but also part of the dead creature's interrupted reproduction function.
The resultant junior mutant was a wild, new recombination created without deliberate mutation; A kind of inbred vampiristic progeny, an unrestrained strain,. Body-less sex In an Anti-Body ecosystem for co evolution. Cultured in the Digital Pool! What could be more appealing? Getting back to the rational non-reality we have learned to love and trust or, in other words, the real world, it becomes all too clear that much that is considered ground breaking is not really new.
And that each perspective we have today derives from a point originally placed many years earlier. Consider, for example, the rules for one-point perspective, written by Alberti five hundred years ago. His mathematical metaphor was first applied to painting and drawing and promulgated an age of exquisite illusionism. Artists who used his theories could paint windows onto imagined vistas with such precision that viewers were impressively deceived. Was this ethical?
What implications did it have? Did Donatello or Vermeer question the vistas of voyeurism their windows would invite? In an effort to eschew illusion, Marcel Duchamp investigated the essentials of art production, including selfhood and the uncontrolled idiosyncratic inner impulses. The sine qua non of art, according to Marcel Duchamp, is not some essence or quality residing in the final work, but rather an infinitely subtle shifting of the intent of the artist. In works of Duchamp such as Rrose Selavy, the intent and body of the artist are the sine qua non of artistic practice.
Rrose was a non-body through which Duchamp could escape fixed identity, becomingng an "other" in the process. Otherness refers in this case to something defined by what it is not. There is a relationship between Duchamp and his contemporary, Heisenberg. The irrationality of Heisenberg's theories of the observer affecting what is observed in Quantum Mechanics found at the interior of extreme physics metaphorically reflects Duchamp's "experiments" regarding randomness and chance.
Both were looking for the path not taken. This pre r amble as been leading up to the development of my own body of non-body and anti-body work produced in the past three decades. I divide my work in two categories, B. I will begin with the first. In the 's, I lived quite literally in B. Ideals of community, alternative, reprocessed media, free speech and civil rights were constantly in the air.
I could hear amplified speeches of radical heroes, such as Malcom X through my open windows. In those volatile years, art and life fused, political performances took place in the streets. I didn't realize until a decade later that the attitude of that era was to form the basis of my psychological armature, the framework for all the work that followed that time.
Consistently, my most relevant ideas occur on the cusp of some disaster. This closure opened a second phase in my work and inspired my first radical act! From , I created various wax masks that both talked to viewers through audio tapes or dissolved, extinguished by fire. A few years later, in , I created my first non-body work in an actual hotel room in The Dante Hotel. The identity of the person was defined by the objects that surrounded her taste and background.
In painting, it might be called negative space. Books, glasses, cosmetics and clothing were selected to reflect the education, personality and socioeconomic background of the provisional identities. Pink and yellow light bulbs cast shadows and audiotapes of breathing emitted a persistent counterpoint to the local news playing on the radio.
Thus my path to non-body works and interactivity began, not with technology, but with installations and performances. Visitors entered the hotel, signed in at the desk, and received keys to the rooms. Residents of the transient hotel became "curators" and cared for the exhibition. I intended to keep the room permanently accessible, gathering dust and being naturally changed through the shifting flow of viewers. But "real life" intervened.
Nine months after the opening, a man named Owen Moore came to see the room at 3 a. They came to the hotel, confiscated the elements and took them to central headquarters where they are still waiting to be claimed. It was, I thought, an appropriate narrative closure. Yet even in its tenuous and short lived existence, The Dante Hotel became one of the first alternative space or public artworks produced in the United States. It was site-specific four years before the term was coined.
Book of the Day: Cyberspace and the Self-Management of the Self
The identities of the non-bodies inside were formed by what was absent. The drive to alter "found environments" that existed in real life persisted. Eventually temporary works were installed in such unlikely places as casinos of Las Vegas, store windows in New York, even walls of San Quentin Prison. In each the idea was the same; to transform what already existed through an interactive negotiation of simulated or "virtual" reality. And to define the "identity" of each context in terms of the "other" or what was not there. Inside the Dante Hotel room 47 was "essence" of an identity.
When the room closed, it seemed important to liberate the essence of the person who might have lived there, to flesh out experience through real life. In an era of alternatives, she became an objectified non-bodied alternative personality. Roberta was at once artificial and real.
A non-person, the gene of the anti-body, Roberta's first live action was to place an ad in a local newspaper for a roommate. People who answered the ad became participants in her adventure. As she became part of their reality, they became part of her fiction.
I wanted Roberta to extend beyond appearance into a symbol that used gesture and expression to reveal the basic truth of character. She had credit cards, checking accounts and more credit than I did still does. Roberta was an interactive vehicle with which to analyze culture. Her profile was animated through cosmetics applied to her face as if it were a canvas, and her experience reflected the values of her society. Roberta participated in trends such as EST and Weight Watchers, saw a psychiatrist, had her own language, speech patterns, handwriting, apartment, clothing, gestures and moods.