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Even after nine years of Internet Governance Forums (IGFs), Internet governance is still in its infancy. Experience from other international regimes (e.g. environment, air transport, arms control) has shown that such regimes have to develop a common reference framework, including values, perceptions of cause-and-effect relationships, modes of reasoning, terminology, vocabulary, and jargon.

Our research project is identifying building blocks for the Internet governance reference framework through analysis of the IGF text corpus. Since the real-time verbatim reporting process preserves the most of the linguistic information from the IGF,  the analysis of that information should be able to recover at least the most important lines of thinking about the IG issues. 

The starting point is the Internet Governance Cognitive Toolkit which consists of approaches, patterns, and analogies. They will be compared to the IGF text corpus. For example, the research is identifying the main approaches and analogies used during the IGF. The research project relies on the research tools and techniques of contemporary cognitive sciences.

For more information about the Internet Governance Cognitive Toolkit, including the list of said approaches, patterns, and analogies, see Kurbalija J (2014) An Introduction to Internet Governance, 6th edition. Malta: DiploFoundation.

Approaches and patterns

A number of approaches and patterns have gradually emerged, representing points where differences in negotiation positions as well as in professional and national cultures can be identified. Identifying common approaches and patterns may reduce the complexity of negotiations and help to create a common reference framework.

Narrow vs broad approach

The narrow approach focuses on the Internet infrastructure (DNS, IP numbers, and root servers) and on ICANN’s position as the key actor in this field. According to the broad approach, Internet governance negotiations should go beyond infrastructural points and address other legal, economic, developmental, and sociocultural issues. This latter approach is adopted in the WGIG report and the WSIS concluding document. It is also used as the underlying principle of IGF architecture.

Technical and policy coherence

A significant challenge facing the Internet governance process has been the integration of technical and policy aspects, as it is difficult to draw a clear distinction between the two. Technical solutions are not neutral. Ultimately, each technical solution/option promotes certain interests, empowers certain groups, and, to a certain extent, impacts social, political, and economic life. In the case of the Internet, for a long time both the technical and the policy aspects were governed by just one social group – the early Internet community.

With the growth of the Internet and the emergence of new Internet governance actors – mainly the business sector and governments – it was difficult for the Internet community to maintain an integrated coverage of technical and policy issues under one roof. Subsequent reforms, including the creation of ICANN, have tried to re-establish coherence between technical and policy aspects. Th is issue remains open, and as expected, has shown to be one of the controversial topics in the debate on the future of Internet governance.

‘Old-real’ vs ‘new-cyber’ approach

There are two approaches to almost every Internet governance issue. The ‘old-real’ approach argues that the Internet has not introduced anything new to the field of governance. It is just another new device, from the governance perspective, no different from its predecessors: the telegraph, the telephone, and the radio.

For example, in legal discussions, this approach argues that existing laws can be applied to the Internet with only minor adjustments. In the economic field, this approach argues that there is no difference between regular commerce and e-commerce. Consequently there is no need for special legal treatment of e-commerce.

The ‘new-cyber’ approach argues that the Internet is a fundamentally different communication system from all previous ones. The main premise of the cyber approach is that the Internet has managed to de-link our social and political reality from the (geographically separated) world of sovereign states. Cyberspace is different from real space and it requires a different form of governance. In the legal field, the cyber school of thought argues that existing laws on jurisdiction, cybercrime, and contracts cannot be applied to the Internet and that new laws must be created. Increasingly, the old-real approach is becoming more prominent in both regulatory work and policy field.

Decentralised vs centralised structure of Internet governance

According to the decentralised view, Internet governance should reflect the very nature of the Internet: a network of networks. This view underlines that the Internet is so complex it cannot be placed under a single governance umbrella, such as an inter-governmental organisation, and that decentralised governance is one of the major factors allowing fast Internet growth. This view is mainly supported by the Internet’s technical community and by developed countries.

The centralised approach, on the other hand, argues that there should be one inter-governmental organisation for Internet governance. Some countries are motivated for this approach due to the limited human and financial resources available to follow highly decentralised Internet governance processes. Such countries find it difficult to attend meetings in the main diplomatic centres (Geneva, New York), let alone to follow the activities of other institutions, such as ICANN, W3C (World Wide Web Consortium), and the IETF. These, mainly developing, countries argue for a one-stop shop, preferably within the framework of an inter-governmental organisation.

Protection of public interests on the Internet

One of the main strengths of the Internet is its public nature, which has enabled its rapid growth and also fosters creativity and inclusiveness. How to protect the public nature of the Internet will remain one of the core issues of the Internet governance debate. This problem is especially complicated given that a substantial part of the core Internet infrastructure – from transcontinental backbones to local area networks – is privately owned. Whether or not private owners can be requested to manage this property in the public interest and which parts of the Internet can be considered a global public good are some of the difficult questions that need to be addressed. Most recently, the question of the public nature of the Internet has been re-opened through the debate on network neutrality.

Geography and the Internet

One of the early assumptions regarding the Internet was that it overcame national borders and eroded the principle of sovereignty. With Internet communication easily transcending national borders and user anonymity embedded in the very design of the Internet, it seemed to many, to quote the famous Declaration of Independence of Cyberspace,[i] that governments had ‘no moral right to rule us [users]’ nor ‘any methods of enforcement we have true reason to fear’. Technological developments of the recent past, however, including more sophisticated geo-location software, increasingly challenge the view of the end of geography in the Internet era.

Today, it is still difficult to identify exactly who is behind the screen but it is fairly straightforward to identify their geographical location. The more the Internet is anchored in geography, the less unique its governance will be. For example, with the possibility of geographically locating Internet users and transactions, the complex question of jurisdiction on the Internet can be solved through existing laws.

Policy uncertainty

Internet technology develops very quickly. New services are introduced almost on daily basis. This creates additional difficulties in organising the Internet governance debate. For example, in November 2005, when the current Internet governance arrangement was negotiated at WSIS in Tunisia[ii], Twitter did not exist. Today, Twitter has triggered some of the core Internet governance issues, such as protection of privacy, freedom of expression, and protection of intellectual property.

Another example of fast technology changes is the relevance of spam. Back in 2005, it was one of the key governance issues. Today, thanks to highly sophisticated technological filters, spam is rarely mentioned in Internet governance meetings.

Policy balancing acts

Balance is probably the most appropriate visualisation of Internet governance and policy debates. On many Internet governance issues, balance has to be established between various interests and approaches. Establishing this balance is very often the basis for compromise. Areas of policy balancing include:

  • Freedom of expression vs protection of public order: the well-known debate between Article 19 (freedom of expression) and Article 27 (protection of public order) of the Universal Declaration on Human Rights has been extended to the Internet. It is very often discussed in the context of content control and censorship on the Internet. 
  • Cybersecurity vs privacy: like security in real life, cybersecurity may endanger some human rights, such as the right to privacy. The balance between cybersecurity and privacy is in constant flux, depending on the overall global political situation. After 09/11 with the securitisation of the global agenda, the balance shifted towards cybersecurity.
  • Intellectual property – protection of authors’ rights vs fair use of materials: another ‘real’ law dilemma which has taken a new perspective in the online world.

Many criticise these ‘balancing pairs’, considering them false dilemmas. For example, there are strong arguments that more cybersecurity does not necessarily mean less privacy. There are approaches towards enhancing both cybersecurity and privacy. While these views are strongly held, the reality of Internet governance policy is that it is shaped by the aforementioned ‘binary’ policy options.

Don’t re-invent the wheel

Any initiative in the field of Internet governance should start from existing regulations, which can be divided into three broad groups:

  • Those invented for the Internet (eg. ICANN).
  • Those that require considerable adjustment in order to address Internet-related issues (e g. trademark protection, e-taxation).
  • Those that can be applied to the Internet without significant adjustments (e g. protection of freedom of expression).

The use of existing rules would significantly increase legal stability and reduce the complexity of the development of the Internet governance regime.

If it ain’t broke, don’t fix it

Internet governance must maintain the current functionality and robustness of the Internet, yet remain flexible enough to adopt changes leading towards increased functionality and higher legitimacy. General consensus recognises that the stability and functionality of the Internet should be one of the guiding principles of Internet governance.

The stability of the Internet should be preserved through the early Internet approach of ‘running code’, which involves the gradual introduction of well-tested changes in the technical infrastructure. However, some actors are concerned that the use of the slogan ‘if it ain’t broke, don’t fix it’ will provide blanket immunity from any changes in the current Internet governance, including changes not necessarily related to technical infrastructure. One solution is to use this principle as a criterion for the evaluation of specified Internet-governance-related decisions (e g. the introduction of new protocols and changes in decision-making mechanisms).

Promotion of a holistic approach and prioritisation

A holistic approach should facilitate addressing not only the technical but also the legal, social, economic, and developmental aspects of Internet development. This approach should also take into consideration the increasing convergence of digital technology, including the migration of telecommunication services towards ISPs.

While maintaining a holistic approach to Internet governance negotiations, stakeholders should identify priority issues depending on their particular interests. Neither developing nor developed countries are homogenous groups. Among developing countries there are considerable differences in priorities, level of development, and IT-readiness (e g. between ICT-advanced countries, such as India, China, and Brazil, and some least-developed countries in sub-Saharan Africa).

A holistic approach and prioritisation of the Internet governance agenda should help stakeholders from both developed and developing countries to focus on a particular set of issues. This should lead towards more substantive and possibly less politicised negotiations. Stakeholders would group around issues rather than around the traditional highly politicised division-lines (e g. developed–developing countries, governments–civil society).

The principle of technological neutrality

According to the principle of technological neutrality, policy should not be designed for specific technological or technical devices. For example, regulations for the protection of privacy should specify what should be protected (e g. personal data, health records), not how it should be protected (e g. access to databases, crypto-protection). The use of the principle of technological neutrality makes a few privacy and data protection instruments, such as the Organisation for Economic Co-operation and Development (OECD) Guidelines from 1980, as relevant today as they were in 1980.

Technological neutrality provides many governance advantages. It ensures the continuing relevance of governance regardless of future technological developments and likely convergence of the main technologies (telecommunication, media, the Internet, etc.). Technological neutrality is different from network neutrality: the former indicates that particular policy is independent of the technology which it regulates; the latter focuses mainly on the neutrality of Internet traffic.

Make tacit technological solutions explicit policy principles

It is a view commonly held within the Internet community that certain social values, such as free communication, are facilitated by the way in which the Internet is technologically designed. For instance, the principle of network neutrality, according to which the network should merely transmit data between two endpoints rather than introduce intermediaries, is often acclaimed as a guarantee of free speech on the Internet. This view could lead to the erroneous conclusion that technological solutions are sufficient for promoting and protecting social values. The latest developments in the Internet, such as the use of firewall technologies for restricting the flow of information, prove that technology can be used in many, seemingly contradictory, ways. Whenever possible, principles such as free communication should be clearly stated at policy level, not tacitly presumed at technical level. Technological solutions should strengthen policy principles, but should not be the only way to promote them.

Avoid the risk of running society through programmers’ code

One key aspect of the relationship between technology and policy was identified by Lawrence Lessig, who observed that with its growing reliance on the Internet, modern society may end up being regulated by software code instead of legal rules. Ultimately, some legislative functions of parliament and government could de facto be taken over by computer companies and software developers. Through a combination of software and technical solutions, they would be able to inluence life in increasingly Internet-based societies. Should the running of society through code instead of laws ever happen, it would substantially challenge the very basis of the political and legal organisation of modern society.

 

Analogies

Though analogy is often misleading, it is the least misleading thing we have.

Samuel Butler, British Poet (1835–1902)

Analogy helps us to understand new developments in terms of what is already known. Drawing parallels between past and current examples, despite its risks, is one of the key cognitive processes in law and politics. Most legal cases concerning the Internet are solved through analogies, especially in the Anglo-Saxon precedent legal system. The use of analogies in Internet governance has a few important limitations.

First, ‘Internet’ is a broad term, which encompasses a variety of services, including e-mail (analogous to telephony), web services (analogous to broadcasting services – television), and databases (analogous to libraries). An analogy to any particular aspect of the Internet may over-simplify the understanding of the Internet.

Second, with the increasing convergence of different telecommunication and media services, the traditional differences between the various services are blurring. For example, with the introduction of VoIP, it is increasingly difficult to make a clear distinction between the Internet and telephony. In spite of these limiting factors, analogies are still powerful; they are still the main cognitive tool for solving legal cases and developing an Internet governance regime.

Internet – telephony

Similarities: In the early Internet days, this analogy was influenced by the fact that the telephone was used for dial-up access to the Internet. In addition, a functional analogy holds between the telephone and the Internet (e-mail and chat), both being means for direct and personal communication.

Differences: The Internet uses packets instead of circuits (the telephone). Unlike telephony, the Internet cannot guarantee services; it can only guarantee a ‘best effort’. The analogy highlights only one aspect of the Internet: communication via e-mail or chat. Other major Internet applications, such as the World Wide Web, interactive services, etc., do not share common elements with telephony.

Used by: This analogy is used by those who oppose the regulation of Internet content (mainly in the USA). If the Internet were analogous to the telephone, the content of Internet communication can not be legally controlled, unlike – for example – broadcasting. It is also used by those who argue that the Internet should be governed like other communication systems (e.g. telephony, post), by national authorities with a coordinating role of international organisations, such as the ITU. According to this analogy, the Internet DNS should be organised and managed like the telephony numbering system.[iii]

A new twist in the complex analogy was created by VoIP (e.g. Skype) which performs the function of the telephone while using Internet protocols. This dichotomy triggered a policy controversy in the preparation for the World Conference on International Telecommunications (WCIT) in Dubai. The current view that VoIP is the Internet service is challenged by those who argue that it is a telecommunication service and that, like telephony, should be regulated on the global level by the ITU.

Internet – mail/post

Similarities: Here is an analogy in function, namely the delivery of messages. The name itself, e-mail, highlights this similarity.

Differences: This analogy covers only one Internet service: e-mail. Moreover, the postal service has a much more elaborate intermediary structure between the sender and the recipient than the e-mail system, where the active intermediary function is performed by ISPs or an e-mail service provider like Yahoo! or Hotmail.

Used by: The Universal Postal Convention draws this analogy between mail and e-mail: ‘Electronic mail is a postal service which uses telecommunications for transmitting.’ This analogy can have consequences concerning the delivery of official documents. For instance, receiving a court decision via e-mail would be considered an official delivery.

The families of US soldiers who died in Iraq have also attempted to make use of the analogy between mail (letters) and e-mail in order to gain access to their loved ones’ private e-mail and blogs, arguing that they should be allowed to inherit e-mail and blogs as they would letters and diaries. ISPs have found it difficult to deal with this highly emotional problem. Instead of going along with the analogy between letters and e-mail, most ISPs have denied access based on the privacy agreement they had signed with their users.

Internet – television

Similarities: The initial analogy was related to the physical similarity between computers and television screens. A more sophisticated analogy draws on the use of both media – web and TV – for broadcasting.

Differences: The Internet is a broader medium than television. Aside from the similarity between a computer screen and a TV screen, there are major structural differences between them. Television is a one-to-many medium for broadcasting to viewers, while the Internet facilitates many different types of communication (one-to-one, one-to-many, many-to-many).

Used by: This analogy is used by those who want to introduce stricter content control to the Internet. In their view, due to its power as a mass media tool similar to television, the Internet should be strictly controlled. The US government attempted to use this analogy in the seminal Reno vs ACLU case. This case was prompted by the Communication Decency Act passed by Congress, which stipulates strict content control in order to prevent children from being exposed to pornographic materials via the Internet. The court refused to recognise the television analogy.

Internet – library

Similarities: The Internet is sometimes seen as a vast repository of information and the term ‘library’ is often used to describe it: for example, ‘huge digital library’, ‘cyberlibrary’, ‘Alexandrian Library of the twenty-ifirst century’, etc.

Differences: The storage of information and data is only one aspect of the Internet, and there are considerable differences between libraries and the Internet:

  • Traditional libraries aim to serve individuals living in a particular place (city, country, etc.), whereas the Internet is global.
  • Books, articles, and journals are published using procedures to ensure quality (editors). The Internet does not always have editors.
  • Libraries are organised according to specific classification schemes, allowing users to locate the books in their collections. There is no such classification scheme for information on the Internet.
  • Apart from keyword descriptions, the contents of a library (text in books and articles) are not accessible until the user borrows a particular book or journal. The content of the Internet is immediately accessible via search engines.

Used by: This analogy is used by various projects that aim to create a comprehensive system of information and knowledge on particular issues (portals, databases, etc.). Recently, the library analogy has been used in the context of a Google book project with the objective of digitalising all printed books.

Internet – VCR, photocopier

Similarities: This analogy focuses on the reproduction and dissemination of content (e.g. texts and books). Computers have simplified reproduction through the process of ‘copy and paste’. This, in turn, has made the dissemination of information via the Internet much simpler.

Differences: The computer has a much broader function than the copying of materials, although copying itself is much simpler on the Internet than with a VCR or photocopier.

Used byThis analogy was used in the context of the US Digital Millennium Copyright Act (DMCA), which penalises institutions that contribute to the infringement of copyright (developing software for breaking copyright protection, etc.). The counterargument in such cases was that software developers, like VCR and photocopier manufacturers, cannot predict whether their products will be used illegally.

This analogy was used in cases against the developers of Napster-style software for peer-to-peer (P2P) sharing of ifiles, such as Grokster and StreamCast.

Internet – highway

Similarities: What the highway is for transportation in the real world, the Internet is for communication in a virtual space.

Differences: Aside from the transportation aspect of the Internet, there are no other similarities between the Internet and highways. The Internet moves intangible materials (data), while highways facilitate the transportation of goods and people.

Used by: The highway analogy was used extensively in the mid-1990s, after Al Gore allegedly coined the term ‘information superhighway’.The term ‘highway’ was also used by the German government in order to justify the introduction of a stricter Internet content control law in June 1997:

It’s a liberal law that has nothing to do with censorship but clearly sets the conditions for what a provider can and cannot do. The Internet is a means of transporting and distributing knowledge… just as with highways, there needs to be guidelines for both kinds of traffic.[v]

Internet – high seas

Similarities: Initially, this analogy was driven by the fact that like the high seas, the Internet seems to be beyond any national jurisdiction.

Differences: Nowadays, it is clear that most of the Internet lies within some national jurisdiction. The technical infrastructure through which Internet traffic is channelled is owned by private and state companies, typically telecommunication operators. The closest analogy to the Internet in the maritime field would be a shipping company’s transport containers.

When it comes to legal instruments, the Convnetion on the Law of the Sea regulates activities beyond national jurisdiction, such as on the high seas. There is nothing analogous in the field of Internet telecommunication.

Used by: This analogy is used by those who argue for the international regulation of the Internet. Concretely speaking, this analogy suggests the use of the old Roman law concept of res communis omnium (i e. space as a common heritage for humankind to be regulated and garnered by all nations) on the Internet as it is used for regulating the high seas.

 


[i] Barlow JP (1996) A declaration of the independence of cyberspace. Available at: https://projects.eff.org/~barlow/Declaration-Final.html [accessed 21 January 2014].

[ii] The WSIS process started with the first preparatory meeting held in July 2002 in Geneva. The first summit was held in Geneva (December, 2003) and the second summit in Tunisia (November, 2005).

[iii] Volker Kitz provides an argument for the analogy between administration of telephony systems and Internet names and numbers. Kitz V (2004) ICANN may be the only game in town, but Marina del Rey isn’t the only town on Earth: Some thoughts on the so-called ‘uniqueness’ of the Internet. Available at  http://studentorgs.law.smu.edu/Science-and-Technology-Law-Review/Articles/Fall-2005/Kitz.aspx [accessed 21 January 2014].

[iv] Excerpts from the Secretary General’s speech delivered at the ICANN meeting in Cairo (6 November 2008). Available at  http://cai.icann.org/files/meetings/cairo2008/toure-speech-06nov08.txt  [accessed 21 January 2014].

[v] Quoted in Mock K, Armony L (1998) Hate on the Internet. Available at http://archive.is/M70XS [accessed 13 February 2014].

 

 

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