Proliferation of “Internet Governance”

Rolf H. Weber

This essay first appeared in the Internet Monitor project’s second annual report, Internet Monitor 2014: Reflections on the Digital World. The report, published by the Berkman Center for Internet & Society, is a collection of roughly three dozen short contributions that highlight and discuss some of the most compelling events and trends in the digitally networked environment over the past year.

According to a well-known description, Internet Governance “is the simplest, most direct, and inclusive label for the ongoing set of disputes and deliberations over how the Internet is coordinated, managed, and shaped to reflect policies.”[i] In other words, Internet Governance “evolves” the design and administration of the technologies necessary to keep the Internet operational and facilitate the enactment of substantive policies around these technologies.[ii] Such design requires the fructification of law as instrument structuring an order in the public interest.

1. Functions of law

The functions of law crystallize in a system of rules and institutions that underpin civil society, that facilitate orderly interaction, and that resolve disputes and conflicts arising in spite of such rules. Law can be created by way of negotiation, imposition, and evolution. In cyberspace, the evolutionary aspect is of major importance since new concepts are developing, for example through the creation of normative principles or the implementation of “rules” derived from codes of conduct, corporate social responsibility, and other similar initiatives.

Law is able to regulate behavior, and it allows people in a community to determine the limits of what can and cannot be done in their collective interest. Law as a structural system is traditionally featured with coercive effect.[iii] If law is properly implemented, its provisions can be enforced against the will of individuals. However, irrespective of its (coercive) quality, the legal system is embedded in other socially relevant systems; in particular, “cyber-norms” depend on social norms.[iv] Developments in technology and/or society, expressed in informal standards, can and should give input to legislative bodies; thereby, the acceptability of legal norms increases if they are based on informal social standards that are derived from customary behavior of civil society.[v]

The relativity of norms reflecting civil society’s needs is evidenced by the fact that norms can come in a variety of shapes with different effects; insofar the legal system is linked to other social sub-systems and executed through a framework of structural couplings.[vi] Such kind of structure calls for a multilayered approach in norm-setting.[vii]

When designing the future cyberspace legal framework[viii] the fact should be considered that architects are the experts in sketching “constructions.” More than a hundred years ago, the famous architect Louis H. Sullivan said: “It is the pervading law of all things, organic and inorganic, of all things, physical and metaphysical, of all things human and all things superhuman, of all true manifestations of the head, of the heart, of the soul that the life is recognizable in its expression, that form ever follows function. This is the law.”

Sullivan uses the word “law” twice while attributing the notion of making form dependent on function. Therefore, when designing a global Internet Governance framework, the function of law has to be considered in more depth; following Bentham’s principle of utility and Luhmann’s approach of stabilization of normative expectations, a functional approach that bodes for the political design of Internet Governance should determine the normative order.

As a result, the main question could be phrased as follows: What social impacts should be caused by law? The answer is based on the expectations of civil society. These expectations change over time, but some elements remain the same, such as legal certainty, stability, and reliability. In times of fast developing information technologies, civil society is better able to rely on these principles in an informal law-making process and context than in the traditional legal regime.

Thesis 1: A functional approach of rule making is necessary to adequately capture socio-political expectations of civil society.

2. Increased dynamics through socio-technological developments

Technological developments in the information and communication field, particularly the process of digitization, have caused advances that lead to widespread social change.[ix] These advances need to comply with at least three social expectations:[x] (i) applications for the public have to be available from a technical point of view; (ii) applications and projects leading to them must be socially and commercially acceptable; and (iii) the implementation and usage of the systems should be done such that they are achievable from a cultural perspective.

In the Internet context, technological developments require an adaptation of the regulatory design and its modalities, which can be differentiated into socially-mediated modalities and environmental modalities. Thereby, the regulatory authority called upon to settle a regulatory disruption may choose to “utilize any of the socially mediated modalities either alone or in a hybrid regulatory model.”[xi] Correspondingly, modern socio-legal theory has tried to develop models that ideally should overcome legal instability. As a consequence, the legal framework should encompass the socially desirable requirement that netizens be members of civil society and should simultaneously become manageable, available, realistic, workable, and interwoven easily with all aspects of social life.

These developments caused by technologies and influencing the social/environmental parameters of an open society make the regulatory systems more dynamic. Cyber-communities are successfully able to shape their internal relations with non-legal tools (technical standards, terms of use, codes’ of ethics).[xii] Therefore, regulators have to take into account the assessments of network engineers and communication theorists pointing to the vital function played by environmental layers in communications networks even if such approach leads to a complex structural matrix.[xiii]

Scholars have tried to capture these increased dynamics with a “global experimentalist governance” theory (“GXG”). An ideal GXG regime comprises five key steps,[xiv] namely: 1) initial reflection and discussion among stakeholders; 2) articulation of a framework understanding with open-ended goals; 3) implementation of these broadly framed goals; 4) continuous feedback provided from local contexts; and 5) periodic and routine re-evaluation of the goals and practices (including their possible adaption or revision). Certain similarities of the GXG approach with the multi-layer or network governance model do exist; however, GXG puts more emphasis on new forms of learning. A condition for GXG is that States are unable to formulate a comprehensive set of rules and effectively monitor compliance. Furthermore, States must not be stymied by disagreement over basic principles, and the cooperation of civil society actors either as agenda setters or as problem solvers is normally indispensable. A problem with the GXG approach exists in its vulnerability to manipulation and unintended consequences, even if GXG has the potential to increase participation in, and thus the democratic legitimacy of, institutions. Additionally, the foreseeability and the predictability of legal norms are low, and a link to the international legal setting is missing.

Thesis 2: A stable Internet Governance framework can only be established if the respective rules reflect the socially desirable and manageable requirements of the civil society’s members.

3. Rule making in favor of open society

The technological and social developments also contribute to the establishment of an “open society.”[xv] The aims of this openness — evolving in a perpetual process of attempts to ameliorate and correct errors — are the preservation of individual freedom as well as the ideal of political-ideological pluralism. Openness and acceptance of other approaches and solutions for problems should be available, leading to a comparative environment and allowing the best alternative to establish itself.[xvi] Cyberspace is particularly apt for an “open society,” since new possibilities for participation may be discovered and previous involvement processes could be ameliorated.

The “openness” also presupposes that public forums are accessible and allow an exchange of opinions. This transparent scheme would allow widespread involvement of participants with different backgrounds and manifold ideas; taking note of other individuals’ opinions can lead to dynamic processes being directed to new social and environmental horizons.[xvii] This kind of involvement is particularly important, since behind every new technology lurks someone’s desire to exert control over it.[xviii]

Networks can be characterized as systems partly overlapping and, therefore, requiring “bridges”; freedom and power are affected by the degree of openness, i.e. by the extent “to which individuals can bob and weave between networks to achieve their designed behavior, actions/perceptions, or outcomes.”[xix] The relation between the freedom and the aforementioned three appearances of human activities can be deepened and combined in complex configurations depending on the democratizing environment. In preparing norms it is important to understand the level of freedom and its sources, thereby enabling the rule makers to design a structure that leads to an appropriate equilibrium between the diverging interests.

Nowadays, the openness of cyberspace is threatened by governmental and private control regimes: the security-industrial complex applying extensive surveillance measures — including by co-opting private actors — has significant potential in the hand of dictatorial regimes; its technologies of control and lobbying power, mostly obscured from public gaze, might increase over the coming decade and thereby cause serious threats to individual human freedoms in cyberspace.[xx]

From the private side, the openness of cyberspace can be endangered by cryptographic means (for example encrypted songs or movies) and the implementation of the digital rights management by rightsholders. Furthermore, openness must be ensured on the private side by restricting dominant stakeholders from blocking rival content threatening their own commercial interests (for example by transforming open platforms into “walled gardens”).[xxi] A vigorous enforcement of the openness rules in order to maintain access to innovation is needed in times of increasing establishment of horizontal and vertical bottlenecks to distribution.

Recently, the inventor of the World Wide Web, Tim Berners-Lee, proposed to implement a “Magna Carta” in order to protect and enshrine the independence of cyberspace. The web he created 15 years ago has come under increasing attack from governments and corporate influence, making it necessary to ensure an “open, neutral” system. Berners-Lee’s Magna Carta plan is supposed to be taken up as part of an initiative called “the Web we Want,” which calls on people to generate a digital bill of rights and an open Internet.

Openness of cyberspace corresponds to the principle that the Internet must be seen as a public sphere encompassing multiple publics with manifold interests.[xxii] From this perspective, openness is also a prerequisite for combatting the fragmentation of network structures. As outlined by the European Commission, the vision for cyberspace governance must consist of a single, un-fragmented network.[xxiii]

Thesis 3: A key objective of Internet Governance should consist of the permanent promotion of openness constituting a universal concept that enshrines free access and free communications’ principles.

4. Appropriateness of multi-layer structure

In the cyberspace context, different layers have to design the framework of regulations: the basic differentiation necessary in the design concerns the facts and values of the underlying reality; this assessment leads to the distinction of descriptive and evaluative elements on the level of social norms (informal normative order) and legal norms (institutional normative order).

Multi-layer governance requires the development of common foundations applicable to all relevant layers; at the same time, it must respect diversity and pluralism in order to be commensurate with the respective level of integration. An important aspect of this movement is the acknowledgment of the need for increased cooperation when trying to achieve a multi-layer consistency.

Multi-layer governance addresses normative guidance as to how relations between different layers of governance should be framed in a coherent manner, encompassing both analytical and prospective issues in building upon observations of legal phenomena. The definition of the proper interaction of the different levels has a direct impact on an ideally coherent regulatory architecture of multi-layer governance, i.e., multi-layer governance “proposes a process and direction.”[xxiv] If common legal rights and obligations can be identified, the ensuing legal framework enjoys special legitimacy, which is essential for the operation and effectiveness of law.[xxv]

Since regulatory frameworks evolve within a given societal and political context, private regimes are part of the overall legal design, particularly if their weaknesses can be eliminated or at least diminished. These regimes have a certain place in a multi-layer structure, if developed with the objective of establishing an appropriate institutionalization, based on broad initiation and wide building support. Other elements are the significance of the institutional environments, the dynamics of relationships, and how non-sovereign bodies respond to multiple legitimacy claims in complex and dynamic regulatory situations. In relation to non-state or private networks and organizations, the governance emphasis should not be based on normative validity; moreover, the trend towards efficiency and public value maximization also needs to be supported.

Notwithstanding the fact that some elements that define multi-layer governance in a global context seem diffuse, important core themes can be extracted:[xxvi]

• Future regulatory problems by their nature will require broader and more collective decision making than applied in traditional regimes; global interactions necessitate the establishment of a multistakeholder regime.
• Responses to new problems are complex on the global level, and flat structures on different sub-levels facilitate decision making by including the relevant persons and organizations in the process at the actual point of their respective concern.
• The ongoing processes of globalization and integration necessarily lead to an altered perception and notion of State sovereignty and ask for new elements of legitimacy in this respect.

The described multi-layer concept also goes hand in hand with the increasingly prevailing multistakeholder approach to Internet Governance.

Thesis 4: Multi-layer governance is necessary in order to enshrine descriptive and normative elements into the decision-building processes and to lay the ground for the realization of the multistakeholder approach.

5. Improved quality of rule making

In view of these developments, the conditions for regulatory quality and performance must be designed in a way that both socially mediated and environmental modalities can be adequately taken into account. The realization of these objectives calls for the implementation of the multi-layered concept; a proper interaction of the different levels has a direct impact on an ideally coherent regulatory architecture.

Irrespective of the implemented substantive legal principles for cyberspace, however, it is necessary to ensure that the norm setting reaches an adequate level of quality. A consensus of all concerned cyberspace actors on the rule-making body does not suffice if the norms are so defective that they do not achieve the envisaged normative objectives. Three problems are particularly noteworthy in this context:[xxvii]

• In developing new norms, rule makers have to avoid creating conflicts with other rules that are already part of the cyberspace users’ law system. Therefore, rule makers should research the norms of the concerned community and only then define the new rules that fit into the existing framework. Depending on the given circumstances, new rules may be able to modify existing norms by gradually extending their scope into the rule makers’ desired direction, if this direction is not irreconcilable with the existing framework.
• Another problem consists of the concrete drafting of new rules; if cyberspace actors do not understand the wording, compliance with the rules can hardly be expected or achieved. In other words, the linguistic quality of norms is of importance; insufficient quality is a widely known issue in rule-making processes. In addition, if new rules do not take up the requirements of the socio-technological environment, obedience by cyberspace actors is not facilitated.
• A third pitfall occurs if the law is framed in terms that have no apparent connection to what the cyberspace actors actually do. If the relationship between the demands of the rule maker and the behavior of cyberspace actors is not recognizable, rejection and non-compliance by cyberspace actors are likely, since the respective new rule does not appear to be established on the basis of a meaningful concept. Only meaningful and respectful laws will not encounter resistance from the addressees of the norms (i.e., civil society).

As known from general law-making theories, an appropriate trade-off between simplicity and certainty with respect to the application of new rules is difficult to achieve; as a consequence, rule makers have to carefully assess cyberspace actors’ required intentions, behaviors, and outcomes in some detail. As mentioned, another general observation consists of the acknowledgement that law should be embedded in a social concept and that law can hardly operate as a mechanism for controlling the behavior of cyberspace actors. Therefore, the purpose of a rule-making process should be to regulate functions and effects, not means.

Thesis 5: Rule-making bodies should strengthen the efforts to improve the quality of regulation in order to comply with the requirements of a legal framework that meets the needs of civil society.

6. Outlook

The concept of multi-layered governance requires common foundations applicable to all relevant layers, while at the same time it must respect diversity and pluralism by developing normative guidance as to how relations between different layers of governance should be framed in a coherent manner. Consequently, Internet Governance advocates should enlarge the interdisciplinary scope of thinking by taking into account the multi-layered regime in the further proliferation of regulatory concepts.

Notwithstanding the different perceptions of the various stakeholders in cyberspace, the principles agreed upon in the manifold fora need to be embedded into a comprehensible structure. This objective can be achieved if — apart from the technical operability — the legal interoperability is also improved. Legal interoperability is the process of making legal rules work together across jurisdictions. Whether new laws are implemented or existing laws are adjusted or reinterpreted depends on the given circumstances. In view of the increasing fragmentation of cyberspace regulation, efforts should be undertaken to achieve higher levels of legal and policy interoperability in order to reduce costs in cross-border business and to drive innovation and economic growth.[xxviii]

[i] Milton Mueller, Networks and States. The Global Politics of Internet Governance (Cambridge: The MIT Press, 2010), 9.

[ii] Laura DeNardis, The Global War for Internet Governance (New Haven/London: Yale University Press, 2014), 6.

[iii] Herbert L.A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1997), 55–57.

[iv] April Mara Major, “Norm Origin and Development in Cyberspace: Models of Cybernorm Evolution,” Washington University Law Quarterly 78 (2000), 59–111, 86.

[v] Rolf H. Weber, Regulatory Models for the Online World (Zürich: Springer, 2002), 32.

[vi] Niklas Luhmann, Das Recht der Gesellschaft (Frankfurt: Suhrkamp Verlag, 1993), 93, 187–191, 441.

[vii] Rolf H. Weber, “Multilayered Governance in International Financial Regulation and Supervision,” Journal of International Economic Law 13 (2010), 683–704.

[viii] Louis H. Sullivan, “The tall office building artistically considered,” Lippincott’s Magazine 57, March 1896, 403–409, reproduced in: Leland M. Roth (ed.), America builds: Source Documents in American Architecture and Planning (New York: Harper Collins, 1983), 340–345, 345.

[ix] Andrew D. Murray, The Regulation of Cyberspace: Control in the Online Environment (Milton Park: Routledge-Cavendish, 2007), 30–35.

[x] Richard Susskind, The Future of Law (Oxford: Oxford University Press, 1996), 240.

[xi] See Murray (supra note ix), 40.

[xii] Joanna Kulesza and Roy Balleste, “Science and Importance in Cyberspace: The Rise of Use Internet as a New Order in International Law,” Fordham Intellectual Property, Media & Entertainment Law Journal 23 (2013), 1311–1349, 1346.

[xiii] See Murray (supra note ix), 43.

[xiv] See Gráinne de Búrca, Robert O. Keohane, and Charles F. Sabel, “Global Experimentalist Governance,” British Journal of Political Science 2014 (forthcoming), now available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2423810.

[xv] Karl Popper, The Open Society and Its Enemies, (London: Princeton University Press, 1945).

[xvi] Rolf H. Weber and Romana Weber, “Social Contract for the Internet Community? Historical and Philosophical Theories as Basis for the Inclusion of Civil Society in Internet Governance?,” SCRIPT-ed 6 (2009), 90–105, 96.

[xvii] See Weber and Weber (supra note xiv), 96.

[xviii] See Kulesza and Balleste (supra note xii), 1313.

[xix] Yochai Benkler, “Network Theory: Networks of Power, Degrees of Freedom,” International Journal of Communication 5 (2011), 721–755.

[xx] Ian Brown and Christopher T. Marsden, Regulating Code: Good Governance and Better Regulation in the Information Age (Cambridge: The MIT Press, 2013), 162.

[xxi] Salil K. Mehra, “Paradise is a walled garden? Trust, antitrust and user dynamism,” George Mason Law Review 18 (2011), 889–952.

[xxii] Rikke Frank Jørgensen, Framing the Net: The Internet and Human Rights (Cheltenham: Edward Elgar Publishing, 2013).

[xxiii] European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, “Internet Policy and Governance: Europe’s role in shaping the future of Internet Governance,” COM(2014) 72 final, February 12, 2014, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:52014DC0072.

[xxiv] Thomas Cottier, “Multilayered Governance, Pluralism, and Moral Conflict,” Indiana Journal of Global Legal Studies 16 (2009), 647–679, 656.

[xxv] Weber (supra note vii), 690.

[xxvi] See Rolf H. Weber, Shaping Internet Governance: Regulatory Challenges, (Zürich: Springer, 2009).

[xxvii] See Chris Reed, Making Laws for Cyberspace (Oxford: Oxford University Press, 2012), 226–228.

[xxviii] John Palfrey and Urs Gasser, Interop: The Promise and Perils of Highly Interconnected Systems (New York: Basic Books, 2012), 177–179.