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     models

This page looks at models for regulation of cyberspace.

It covers -

• five models
• a digital ring fence
• code as law
• a new global body
• a lex informatica
• more of the same
• perspectives
• assessment

It is not comprehensive but should give you a map of how the pieces fit together (and how Australian law will evolve to accommodate international developments, such as the EU privacy regime). It will also offer insights into the role of bodies such as ICANN, often unfairly criticised as the unelected government of cyberspace

     five models?

Debate about the shape of governance is highly contentious. 

Leaving aside the romantic notion that any governance is bad governance (or that the questions can somehow be ignored),  arguments for regulating cyberspace reflect five models:

the digital ring fence: traditional national (and state, province or other subordinate jurisdiction) law that's underpinned by geolocation or other technologies that strengthen borders in cyberspace

code as law: de facto rules emerging from decisions made by online service providers and users, with disputes being resolved on an exceptional basis through national/international private litigation and arbitration

a new global body: creation of an international organization to establish rules and, in some proposals, to administer them

a lex informatica: new treaties or multilateral international agreements to establish broad-ranging 'whole-of-cyberspace' rules

the status quo: ie refinement and extension of a patchwork of global agreements and bilateral/multilateral agreements that broadly harmonise national government-based regulatory regimes

     digital ring fence

Some enthusiasts have argued that geolocation and other technologies will allow policymakers and administrators to build fences in cyberspace, with citizens of a particular nation being governed by the laws specific to that jurisdiction. French hate speech law could thus apply to France, the US Child Online Protection Act of 1998 would apply in the US but not Sweden, Australian online gambling and censorship law would apply within the Commonwealth and its territories.

For the moment the technologies are unlikely to provide much of a fence and the overall model does not appear to effectively address fundamental questions about the 'locus' of cross-border activity, evident in

• bilateral and multilateral agreements since at least the 1850s
• thinking about 'commons' such as the law of the sea, the law of aviation space, and the law of outer space (eg the 1966 treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies).

In practice much action using the ring fence model has the flavour of gesture politics, resulting in media statements that have no effect because they don't extend to another jurisdiction.

One starting point is Maureen O'Rourke's 1998 paper Fencing Cyberspace: Drawing Borders in a Virtual World.

Another is the snappy 'iBrief' on the Duke University Law Journal site about the LICRA-Yahoo dispute, with the authors arguing that application of local law allowed France to win a victory against domestic hate groups but "dealt a blow to free speech everywhere" and commenting that the restrictions illustrate problems inherent in the absence of a global internet jurisdiction.

     code as law

Others envisage de facto rules emerging from decisions made by online service providers, software developers and users, with disputes being resolved on an exceptional basis through national/international private litigation and arbitration. The standards that a foreign company builds into accounting software might play a major role in regulating the standards of accounting used in a country that has a relatively small number of businesses.

An example is the regime described in "Chaos prevailing on every continent": Towards a new theory of decentralized decision-making in complex systems, a paper by David Post & David Johnson.

     a new global body

Others propose creation of a new international organization to establish rules and, in some proposals, to administer them. Such proposals have been criticised as a triumph of hope over experience. Critics have for example questioned why a new body will succeed. Others have suggested that a more realistic approach would be to use existing bodies such as ICANN rather than starting from scratch.

One example is the proposal by the People for Internet Responsibility (PFIR) group for a 'Representative Global Internet Policy Organization', ie an entity that combines wide policy and decision making responsibilities about most aspects of cyberspace.

Wolfgang Kleinwaechter's 2001 paper (PDF) Global Governance in the Information Age argues that

the emergence of new global governance mechanisms like the "Internet Corporation for Assigned Names & Numbers" (ICANN) and the "Global Business Dialogue on eCommerce" (GBDe) can be seen as "pilot projects" to explore the feasibility of new policy mechanisms which go beyond the traditional governmental top-down system. Both institutions have introduced new principles in global policy-making like bottom-up coordination, rough consensus, openness and transparency ... with the ongoing globalization and informatisation of law and policy-making, new governance structures will appear which go beyond a system based on the territorial and personal sovereignty of the nation state.

     lex informatica

Somewhat more realistically, others have suggested new treaties or multilateral international agreements to establish broad-ranging 'whole-of-cyberspace' rules.

Those agreements would offer uniform treatment across jurisdictions and across areas of activity. They would build on existing agreements and institutions, such as the World Trade Agreement, the International Telecommunications Union agreements and the various international copyright conventions under the auspices of the World Intellectual Property Organisation.

An example is the recommendation in the American Bar Association's major cyberspace law report for a global commission to set international rules regarding banking, consumer protection, privacy, taxation, gambling and other online activities.

     more of the same

Our assessment is that the future is likely to involve the final model: a continuation of the status quo. At the moment there's a patchwork of global agreements and bilateral/multilateral agreements (such as the EU-Canada privacy agreement and the North American Free Trade Agreement) that broadly harmonise national government-based regulatory regimes.

In the words of one critic, those regimes would be characterised by "geographically-based, centralized, top-down governance", with a continuation of existing disputes over jurisdiction (explored in the next page of this guide), inconsistencies of interpretation and uneven legislative development.

At the national level an example is the European Commission's package of Legislative Proposals for a new Regulatory Framework for Electronic Communications, with directives on telecommunications privacy, access and interconnection among others.

There is another view in the speech by ITU Secretary-General Peka Tarjanne on Internet Governance: Towards Voluntary Multilateralism, in Robert Litan's perceptive 2001 article Law & Policy In The Age Of The Internet and Jack Goldsmith's cogent The Internet, Conflicts of Regulation & International Harmonization (PDF).

     perspectives

As a starting point for considering models for the regulation of cyberspace we recommend Stuart Biegel's Beyond Our Control? Confronting the Limits of Our Legal System in the Age of Cyberspace (Cambridge: MIT Press 2001), Matthew McCloskey's dated but valuable ILPF Bibliography of Internet Self Regulation (here) and United States Hegemony & the Foundations of International Law (Cambridge: Cambridge Uni Press 2003) edited by Michael Byers & Georg Nolte.

David Post's 1995 paper Anarchy, State, & the Internet: An Essay on Law-Making in Cyberspace and Dan Burk's provocative Muddy Rules in Cyberspace paper suggest that 'fuzzy' rules (and disputed institutions) may be the future of the internet. They highlight the likelihood of high internet transaction costs because of the number of parties involved, the difficulty of locating the parties, increased opportunity for strategic behavior and transborder activity.

Mark Lemley's more cogent paper on The Law & Economics of Internet Norms criticises suggestions that law should defer to online social norms, either by abdicating its role entirely to cyberspace self-governance, or by carving out particular roles for nonlegal rulemaking.

He notes that online norms are elusive and rapidly changing, without the consensus required for norm creation.

Neither Net 'vigilantes,' judges, nor code itself can be relied upon to identify and enforce Internet norms with an appropriate sensitivity to efficiency and policy concerns.

In 1996 US Judge Frank Easterbrook's lecture on Cyberspace & the Law of the Horse commented that there was no need for a 'law of cyberspace', just as there had been no need for a law of the horse. Existing principles were adequate. Rather than struggling to develop a body of 'cyberlaw' or new institutions, those seeking order in cyberspace should concentrate on the optimal means of applying existing legal principles. That argument was restated in Joseph Sommer's 2000 BTLJ paper Against Cyberlaw.

Lawrence Lessig's rejoinder argued that similarities between the regulation of real space and regulations of cyberspace hide important differences. Both were criticised by the provocative Michael Froomkin in a paper on The Empire Strikes Back and Jane Ginsburg & Morton Janklow's paper (txt) Private International Law Aspects of the Protection of Works & Objects of Related Rights Transmitted Through Networks.

There is a more balanced study in Henry Perritt's incisive 1997 paper on Cyberspace & State Sovereignty and his Law & the Information Superhighway: Privacy, Access, Intellectual Property, Commerce, Liability (New York: Wiley 1996).

It complements Joel Reidenberg's 1996 paper Governing Networks & Rule-making in Cyberspace, Andreas Rutkowski's brief paper The Internet: Governance for Grabs?, John Zysman & Steven Weber's 2000 paper (PDF) Governance & Politics of the Internet Economy--Historical Transformation or Ordinary Politics with a New Vocabulary? and Autonomous Policy-Making By International Organisations (London: Routledge 1999) edited by Bob Reinalda.

     assessment

Away from the rarified (if often overheated) air of academia, there's little reason to believe that proposals for a radically new regime at the global or national level will progress very far.

That scepticism reflects the tortuous history of international regulatory developments, explored in Braithwaite & Drahos's exemplary Global Business Regulation and in more specialised studies such as Christopher Arup's The New World Trade Organization Agreements: Globalizing Law Through Services & Intellectual Property (Cambridge: Cambridge Uni Press 2000).

Some states, such as the UK, are seeking a more coherent national regime by thinking in terms of a broad 'content & carriage' information policy and amalgamating the plethora of competing regulatory agencies. However, given the complexity of some issues and the different agendas of significant interests, it is unlikely that the quick fixes proposed in Australia and the US will be adopted in any major economy.

Negroponte's naive notion that states will simply evaporate looks increasingly unjustified. Rightly or wrongly, there is widespread community support for content regulation, privacy, consumer protection and other measures which in the foreseeable future can only be implemented at a national or subnational level. While we might be 'digital', to use his jingle, our lives are analogue, fixed to at least one physical location.

More fundamentally, suggestions that a non-government organisation can assume overarching policy and regulatory responsibilities without consistent government endorsement seem to be contradicted by the very low rate of participation in bodies such as ICANN.



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