Law and the Internet

Lilian Edwards, Charlotte Waelde

• Publisher: Hart Publishing
• Year: 2009
• ISBN:
  9781847317124
• Edition: 3
• Topic: Jura
• Subtopic: Naturwissenschaft- & Technologierecht

This is the third edition of a successful book which offers students and practitioners an up-to-date overview of developments in Internet law and practice. The editors have once again assembled a team of specialist authors to write about those aspects of Internet law which are of special importance in the global regulation of the Internet and focussed around three principal themes- e-commerce, intellectual property, and privacy, data protection and cyber-crime with, in addition a major contribution on Internet Governance. This edition incorporates for the first time areas such as data protection, privacy and electronic surveillance, cyber crime and cyber security, jurisdiction and dispute resolution online. The sectionon IP contains clear and comprehensive analysis of the many and varied ways in which IP and the internet intersect including open source licenses and the IP problems around search engines. The new edition also takes account of all current cases and legislation, including the draft revised EC Telecoms Package and the Audio Visual Media Services Directive. This book will be essential reading for students, teachers and practitioners interested in Internet law and practice as well as technologists and social scientists. 'The book is easy to read, and...has been well edited...and flows smoothly through the various topics....the book provides a worthwhile overview of this developing area of law throughout the world.'
Peter Walsh, International Trade Law Annual 'a thorough and stimulating survey....a good introduction for lawyers and students approaching Internet and e-commerce law for the first time, and a useful course text.'
Brian Hutchinson, The Irish Jurist

Part I

Introduction: Governance

Introduction

International Governance and the Internet

ANTONY TAUBMAN¹

Give a laptop. Change the world.²

Everyone, everywhere should have the opportunity to participate and no one should be excluded from the benefits the Information Society offers.³

The important ingredients are the whimsy, the nerds, the ‘let’s just try it out and see what uptake it gets’ … you can find nerds everywhere, that’s the hope of the One Laptop Per Child project and others like it…. I don’t see it as a digital divide thing, I think that nerds can come up everywhere … people willing to devote some passion and some brain cycles to these problems.

I don’t buy the ‘global Internet community’ in sense [of] ICANN…. At the formation of ICANN, I was on the membership advisory committee. And we were there talking about … how do we have the last Sherpa in Afghanistan be represented in ICANN because everybody has a stake in it even if they don’t know it yet. And you end up realizing that while you’re waiting on the votes to come in from all corners, to decide on some essentially top-down scheme that you say is bottom-up because you have to get consensus from everybody, it just fades away. That’s my worry about that kind of process.⁴

I. ‘INTERNATIONAL’ GOVERNANCE AND THE INTERNET?

WE START WITH a confronting question: does it make sense to talk about the ‘international law’ or ‘international governance’ of the Internet at all? Is there anything special, truly distinctive about the Internet that makes it a useful subject for study at the international level? Or, once you strip away the hyperbole about cyberspace and the headline-grabbing topicality of Internet issues, is the Internet, at core, no different from any other medium of international communication and exchange, without any distinctive legal characteristics and without distinct challenges for international law and international institutions? Is the international governance of the Internet just the international system on steroids—exemplifying, accentuating, intensifying existing international trends that would nonetheless be present in an age of globalisation and increasing commercial exchange and cultural interaction across national borders? Alternatively, to take the opposite extreme, is ‘cyberspace’ a separate legal domain, for which new rules (if any) are needed and the old rules are useless, inappropriate, or self-defeating?

The early years of the Internet saw, on the part of some advocates at least, a brave vision of cyberspace as a lawless anarchic frontier, free of the deadening hand of the lawyer and the industry monopolist, in no need of the laws and regulations that tie us down in the physical world. Prompted in part by perceived heavy-handed attempts at national regulation of the Internet, John Perry Barlow penned ‘A Declaration of the Independence of Cyberspace’ which argued for national sovereignty to be kept at bay:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.⁵

Yet the years since the first popularisation of the Internet have seen a steady assertion of national jurisdiction over cyberspace⁶ and the application of existing legal doctrines to Internet transactions. The increasingly mundane and routine practice of law and regulation in cyberspace⁷ can lead some to question whether there is anything legally new about the Internet at all.⁸ To what extent does the Internet define a distinct regulatory space, all to itself, where the rules are different, where conventional law simply fails to reach; and to what extent is it merely a mildly exotic setting for established legal doctrine and legal practice? Does the Internet need actively to be defended against those who would impose upon it the tired doctrines of the bricks-and-mortar world, choking off its vitality and its distinctive, unbounded, adaptive, generative quality? Or, less dramatically, has the rise of the Internet more or less validated the broad principles of the law, even if there are some practical wrinkles in applying them in the online environment?

And, internationally, the rise of the Internet posed the question of whether greater interconnectivity is effectively abolishing national boundaries, or whether national jurisdictions have reached out, amoeba-like, to envelop, contain and absorb cyberspace. Are some stretches of cyberspace truly international in character—like the international legal status of the high seas,⁹ the moon,¹⁰ or non-cyber (actual) ‘space’,¹¹ for that matter; or is the regulation of cyberspace ultimately reducible to national jurisdictions, without any distinct or separate international layer. On a practical plane, perhaps the essential international legal issues raised by the Internet concern the resolution of conflicts between domestic laws, to be settled by the rules of private international law—questions such as whether you can defame someone or breach censorship laws in a third country when publishing on the Internet, and in which jurisdiction you enter into a contract (and in which jurisdiction any dispute might be resolved) when you are trading on the Internet.

These questions suggest that the study of ‘Internet governance’ at the international level may turn out to be more valuable for the insights it offers into the nature of international governance in general, into the character of international regulatory institutions, international legal structures and doctrines, as they come under increasing conceptual, political and technological pressure from the growth of the Internet; and also for insights into the limits of international law and intergovernmental institutions, and how they interplay with domestic law and national regulatory authorities. The advent of the Internet and its permeation into many aspects of international law and its administration have helped to isolate and accentuate the essence of the truly international layer of law—as distinct from how national laws interact in cyberspace.

Hence, in studying international Internet governance issues, we may ultimately learn more about the nature of international law and regulation, and about its limitations, than about the Internet as such. The Internet may, on analysis, turn out to be a distillation of existing trends and existing tensions in the international system, rather than a discrete new regulatory domain in itself defining an entirely new category of challenges for public international law. So the Internet can perform an unexpectedly useful service—serving as a kind of laboratory rat for scholars of international law and governance, intergovernmental institutions, and the role of governments and non-state actors in shaping those laws and institutions.

Despite a profusion of international initiatives and international norm-setting processes addressing the Internet, it is now apparent that the Internet has not, for the most part, carved out a distinct regulatory domain—a separate cyber-jurisdiction—to be studied and managed in strict isolation. The Internet accentuates some central dilemmas of international law and policymaking, and both accelerates and epitomises existing trends towards borderless social, economic and intellectual domains. This is what makes it an indispensible heuristic tool for exploring the nature of international law. Yet it certainly does not break free from the mainstream of international law and governance.

To be sure, there are some distinct regulatory issues thrown up by the Internet, closely connected to its technical character and its practical operation—the most important being the question of who should manage the essential backbone and architecture of the Internet, in particular the Domain Name System (DNS), particularly Generic Top Level Domains (gTLDs), and the allocation of Internet Protocol (IP) addresses. Root servers function, in effect, as the central switchboards of the Internet, reliably converting requests for access to Uniform Resource Locators (URLs) into IP addresses. It is a fundamental regulatory need, if the Internet is to function effectively, for root servers to contain unique and authentic information about the specific IP addresses that domain names refer to; inaccuracy or ambiguity in this information would render the Internet unworkable. This is a distinct and fundamental regulatory challenge peculiar to the Internet, and already the subject of some controversy—the debate ranging along a spectrum between pragmatism and informality, on the one hand, and intergovernmental structure and political legitimacy acquired through consultative processes and demonstrably inclusive procedures. Jonathan Zittrain cogently captures the difficulties of traversing these challenges in the opening quotation. One pragmatic way of measuring the legitimacy of Internet governance mechanisms has been simply to see whether it works in practice. The original progenitor of the Internet, the US government, has laid emphasis on the need for a practical, private-sector-driven approach, and has been wary of any movement towards a fully intergovernmental governance structure, continuing actively to propound a private-sector governance model.¹²

Other governments maintain an interest in having a more active and direct role in Internet governance, through a formal international approach that would give national governments a direct say over such issues as the creation and management of new gTLDs and more direct guidance on policy formulation. Accordingly, a vigorous debate over Internet governance continued throughout the proceedings of the United Nations World Summit on the Information Society (WSIS), a key policy process that unfolded between 2003 and 2005 (discussed in more detail below). The technicalities of Internet governance provoke wider concerns over economic, political and cultural ramifications, concerns that are reflected in a debate over whether the Internet should be governed through genuinely international structures with distinct legal personality under international law, or whether the legal roots of the Internet should remain embedded in the fertile soil from where it was first cultivated, in the domestic jurisdiction of the US.

This fascinating debate has many dimensions—pitching the perspectives of technical experts against those of multilateral diplomats, the public interest against private interests, advocacy of active intervention to promote the development dimension against a laissez-faire approach, and a private, contractual legal structure against a public law approach. The form of the debate illustrates not only how norms are developed and applied in a politically important and contested domain, but also shed light on how a wide range of practical legal mechanisms can give effect to diverse policy objectives and general legal norms.

II. INTERNET GOVERNANCE AND GLOBAL PUBLIC POLICY

One emerging aspect of international law and the Internet is the growing tendency to look to the Internet as a means of fulfilling broader public policy goals, including the objectives of multilateral treaties and the fundamental, bed-rock principles of international law such as human rights. The Geneva Declaration of Principles¹³ was adopted at the first phase of the WSIS process as an authoritative policy document expressing a shared political vision for the Internet (rather than a binding legal instrument). The Declaration sets international co-operation on information and communication technology (ICT) firmly in the context of public policy and the fulfilment of human rights. It expresses a

common desire and commitment to build a people-centred, inclusive and development-oriented Information Society, where everyone can create, access, utilize and share information and knowledge, enabling individuals, communities and peoples to achieve their full potential in promoting their sustainable development and improving their quality of life, premised on the purposes and principles of the Charter of the United Nations and respecting fully and upholding the Universal Declaration of Human Rights.¹⁴

According to the Declaration, ICT can

promote the development goals of the Millennium Declaration, namely the eradication of extreme poverty and hunger; achievement of universal primary education; promotion of gender equality and empowerment of women; reduction of child mortality; improvement of maternal health; to combat HIV/AIDS, malaria and other diseases; ensuring environmental sustainability; and development of global partnerships for development for the attainment of a more peaceful, just and prosperous world.

It invokes Article 19 of the Universal Declaration of Human Rights (UDHR)¹⁵ in reaffirming the right of freedom of opinion and expression as an essential foundation of the information society and sounding a universalist note:

[T]his right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Communication is a fundamental social process, a basic human need and the foundation of all social organisation. It is central to the Information Society. Everyone, everywhere should have the opportunity to participate and no one should be excluded from the benefits the Information Society offers.

The Declaration draws further guidance for Internet governance from Article 29 of the UDHR, which concerns the duties everyone has to the community ‘in which alone the free and full development of their personality is possible’; and the proviso that

in the exercise of their rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

This proviso offers a justification for the continuing regulation of the Internet in the interests of such policy objectives as countering terrorism, suppressing child pornography and dealing with other obvious social ills; but also, more controversially, it may also justify state intervention to limit use of the Internet considered to be prejudicial to public order and welfare in areas where the legitimacy of such constraints may be challenged, such as in regulating political discourse.

Changes in objective, factual circumstances, in particular the advance of technologies, can in turn provoke a recalibration of what we perceive as being just, fair and equitable. For example, before audio recording technology existed, vocal performers had no need of an intangible ‘right’ over their performances; technological advances mean that a performance can now be easily appropriated and commercialised by third parties, a change in the factual background that led to the formulation of a distinct performer’s right first in national laws, and ultimately in binding international law as well.¹⁶ Similarly, modern ICT, and the Internet especially, have sparked this evolution from technological progress to a new sense of equity and entitlement, showing how fundamental ideas of fairness and equity respond to changed technological circumstances. Despite its recent advent for the bulk of humanity, the practical importance of the Internet as a practical tool for fulfilling human rights has introduced notions of justice into debates about Internet governance—if in the contemporary world, Internet access is considered important for participating effectively in democratic processes,¹⁷ expressing one’s beliefs,¹⁸ obtaining an adequate education,¹⁹ enjoying the benefits of scientific progress, and even securing the highest attainable standard of health,²⁰ then does access to the Internet itself evolve into a stand-alone ‘right’—a right to access Internet infrastucture, to access and to share content over the Internet?²¹ Policymakers draw attention to the ‘digital divide’ both within and between nations—originally concerned with disparities in access to computer technology in general, this ‘divide’ increasingly ...