Cyber Law

"The nature of the Internet renders it resistant to traditional forms of regulation. Government control is not the answer for the simple reason that it is unlikely to work. It is truly beyond the reach of any single nation-state." Discuss

Introduction: A Daunting Task

When the Internet is the topic for analysis, hyperbole is seldom misplaced. Some consider the Internet to be a virtual frontier - the Wild West in Cyberspace - an unregulated idyll, a state of nature, an awesome tool of communication, the ultimate fund of human knowledge and diversity and an almost infinite marketplace of ideas. Others deem it to perpetuate a post-apocalyptic state of anarchy crowded by pornographers, where, paedophiles, hackers, criminals and terrorists find both sanctuary and opportunity.

Of course, there is truth in both opinions, and the reality lies somewhere in between.

In the world before the Internet, which seems like a long time ago, it was a given fact that geographical borders, ie. the lines separating national territories, were of primary importance in determining applicable law in terms of legal rights and responsibilities. Each domain, or nation state, established its own independent legal system and the infrastructure to maintain and enforce it.

The Internet has challenged that comfortable status quo and dealt a body blow to the integrity of the world legal order that, despite its many detractors, regulated the twentieth century relatively effectively. It is an amorphous, organic, border-blind global entity. Computer-based communications race across multiple territorial boundaries faster than the blink of an eye, establishing an elusive new realm of human activity and drastically undermining the competence, feasibility, and arguably legitimacy, of legal enforcement under the auspices of some pre-existing (pre-Internet) legislative or judicial framework.

In light of the foregoing it is submitted that it is hard to comprehend that this new realm could possibly be effectively controlled by any currently subsisting international body or sovereign state. That said, it is worth exploring possible forms of Internet regulation in the context of the statement under discussion.

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Options for Governing the Internet

In this commentator's opinion there are several models that might potentially derive a workable basis for the future governance and effective legal regulation of the Internet. These are discussed below.

A) The nations of the world could collectively enter into multi-lateral international agreements to set down a binding and enforceable legal code detailing uniform regulations specifically applicable to conduct and transactions on the Internet. Enforcement could take place through existing national systems on the basis of common rules.

Unfortunately this model for governance would prove highly problematic in implementation. Establishing international treaties is a process that moves with glacial speed. The legal response would lag dramatically behind the rapid progress of new technologies, shifting behavioural patterns and nascent issues of Internet control. Furthermore, it is only a highly optimistic commentator that could entertain the notion that it would be possible to obtain the degree of consensus necessary between nation states to make a treaty work. There will always be countries out of the loop. Bad practice could migrate to those jurisdictions and yet remain on the electronic doorstep of signatories.

B) A new purpose-dedicated international organisation could be established to draw up a binding legal Internet code. Enforcement could be either centrally based as a component of the new body and/or locally organised as in A above.

This model has the advantage that it would not necessarily need to be tied to a particular territory or require to secure, as a condition of dealing with any particular issue, the consent of all interested governments - as would be the case with a treaty. However, while some territorial governments might be prepared to defer to such a regime, it is unlikely that such a non-governmental organisation could impose its rules on the net as a whole. Even if the organisation was able to assert control over the existing domain name system, it would surely be unable to prevent the creation of a new one? Moreover, with a view to first principle, by what right would any such organisation actually govern?

C) Nation states could endeavour to extend their legal jurisdiction, and to establish new law as necessary, in a concerted and coordinated effort to regulate Internet action. This would doubtless be an organic process involving experimentation and staged development, but over time a coherent system could possibly emerge.

The problem with relying territorial governments to establish the rules for activity on the Internet is that no existing sovereign state possesses the jurisdiction or legitimate authority to make such universal rules and without universality there would be unending conflict and uncertainty. The notion of the United States seeking to exercise extra-territorial power over, for example the Middle East is frankly laughable. The authority of national legislatures, at least in the majority of cases, derives from their democratic accountability. However democracy is not best served if the electorate of one jurisdiction attempts to impose its will over those of other jurisdictions. Any attempt to plant a flag over Internet regulation is likely to be resisted by those using the net under a flag of different colours.

D) Rules of practice may be allowed to develop without formal legal basis as a consequence of the effect and impact of administrative decisions taken and policies implemented by IP address and domain name registries concerning the appropriate conditions to impose and requirements to satisfy for possession and retention of an online address. These would be overlaid by the commercial decisions of systems operators (sysops) regarding their adoption of local rules, the installation of filters, sign on protocols, and connectivity with other systems. Market forces - namely user choice, as to which systems to patronise and which personal filters to install - would thereafter entrench the most successful models.

Although at first sight a seemingly piecemeal and incoherent regime lacking central control and the authority of a traditional legal system, it may well be that option D is actually the most likely of those identified to come into being and it may in fact be the one best suited to the administration and de facto regulation of what is after all a non-traditional arena. It is submitted that such a decentralised mechanism would be akin to an established system defined to as polycentric law in the academic press. The Internet Engineering Task Force already refers to this model as one of "rough consensus and working code".

Self-Regulation? A Laissez-Faire Approach

Society is probably more comfortable with the notion of centralised, top-down hierarchical control given that such systems have been the norm in the past. However the Internet poses an entirely new challenge and just as technology is driven by innovation, modes of regulation must prove susceptible to innovative thinking. Option D is not necessarily a model that would lead to lawless anarchy and chaos. In fact it is clear that the Internet's technical protocols have already established a complex, responsive and adaptive system which maintains an order that is not subject to or reliant on the exogenous authority of regulation, statutes or court decisions. It is possible that decentralized decision making at a technical and administrative level could create a coherent, effective, equitable and possibly even empowering form of self-regulated order for the Internet.

Of course it would not be necessary for sovereign states and traditional legal enforcement structures to abandon their ultimate power to act to safeguard the interests of Internet users, and this would remain an essential base-line guarantee of protection in all circumstances. However, intervention could be prudently deferred so as to ascertain whether the combined actions and choices of systems operators, domain name registries and users are capable of creating a set of functional operational rules which offers effective protection, controls and parameters for Internet use. This option would also be the easiest and cheapest to trial. If a laissez-faire approach is taken and the Internet is allowed to develop a responsible self-regulatory structure organically, through decentralized operator and user decision making, the hugely difficult task of imposing a central, multi-jurisdictional legal system and the expenditure of vast resources that such a course of action would entail could be avoided altogether. Moreover, given the complexities of global jurisdictional integrity and huge disparities in the socio-political jigsaw of the world, there is absolutely no guarantee that an attempt to create a traditional regulatory model would be any more effective than the option advocated above

Commentary

It is 2005. Computers are now inextricably embedded as an integral part of society and commerce. They have become pervasive - almost every home and office now possesses at least one - and Internet access, previously a preserve of the technically minded and academic community is now virtually ubiquitous. The Internet is increasingly used for manifold personal transactions - from sending emails, to online banking, gaming, shopping for goods from groceries to real estate, and sharing all varieties of media and music files. The Internet is even encroaching, for example, on the uniquely personal domain of dating and match making.

One of the great strengths of the Internet is that it reflects the broad span of human activity and gives voice and opportunity to All. This is also its greatest weakness, because we do not live in a Utopia. There are many in the world with nefarious intent that seek to exploit the Internet for their own purposes, and even those using the medium in good faith will sometimes run into conflict with each other.

As a consequence it is undoubtedly the case that society is well advised to focus more attention on the difficult question of control and regulation. In this paper possible methods of regulation have been identified and the wider issues have been discussed. The silver lining to the cloud of complexity of multi-jurisdictional enforcement of communication flows across an almost seamless digital network, is that technical and administrative control of these mechanisms determines who has access on what terms and it can be adjusted accordingly without reference to state or international legislatures or courts. Underlying the burgeoning technology of the Internet is a growing set of protocols, standards and software code that specifies the modus operandi of computing devices, and the means by which they interact and interconnect with each other. It is argued that these technical levers can be used to maintain and regulate the Internet environment to a surprising breadth and depth.

In closing, it should be stressed that one must keep in mind both the possibilities and realistic limits of the various possible regulatory approaches. Perhaps, for the foreseeable future at least, policy makers and legislatures should adopt a light-handed, wait-and-see style approach to Internet regulation. It may be advisable to experiment with and carefully evaluate alternative regulatory means, such as decentralised self-regulation, and let this burgeoning new technology settle into place in global society and commerce before attempting to pass comprehensive legislation or establishing new regulatory structures.

Although it is tempting to resort to tried and tested models of legal control, this is a new and unfamiliar arena of activity presenting unique, and in the present socio-political global context, almost insurmountable multi-jurisdictional obstacles. If there is one thing that the countries of the world can all agree on, it is that we can agree on nothing at all. Even issues such as the environment, in which every country has an equal interest and indivisible stake, fail to muster a consensus or indeed anything like it. It is submitted that regulatory ambition posited on the fulcrum of global unanimity on Internet regulation and all its many perspectives is nothing more than pie in the sky.

An entirely new challenge necessitates an innovative approach to regulation. Administrative and technical control appears, in the medium term at least, to present a better option than legal control. It is submitted that an attempt to cling to traditional systems is doomed to failure, and one should note that those systems struggle even to regulate ordinary fields of activity in perfectly homogenous uni-jurisdictional conditions.

The Internet is out of the box and policy makers need to follow it with their thinking. There is no need to rush hastily to the heavy hand of law. Those who do often live to regret their decision.

BIBLIOGRAPHY

Code and Other Laws of Cyberspace, Lawrence Lessig, (1999) Basic Books.
Ordering Chaos: Regulating the Internet, P.H. Ang, (2005) Thomson Learning Asia
Regulating the Internet: Scene Setting, Patrick Twomey: http://www.nottingham.ac.uk/law/hrlc/hrnews/march96/reg.htm
And How Shall the Net Be Governed? A Meditation on the Relative Virtues of Decentralized, Emergent Law, David R. Johnson & David G. Post, (1996) http://www.cli.org/emdraft.html
Polycentric Law, Tom W. Bell, Humane Studies Review, Volume 7, Number 1 Winter 1991/92.
Law and Borders: The Rise of Law in Cyberspace, David R. Johnson and David G. Post, 48 Stanford Law Review 1367 (1996)
Law and Disorder in Cyberspace, Peter Huber, (1997) Oxford University Press.
Internet Engineering Task Force: http://www.ietf.org/

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