1.4. Governance mechanisms

The fact that the Internet does not respect geopolitical boundaries would on the face of it seem to pose a serious obstacle to those who would seek to regulate the Internet, as legal systems as we know them are innately bound to such boundaries. In this way, regulation of the Internet is quite different to regulation of the public switched telephone network (PSTN). The PSTN has both a logically, and also a physically, hierarchical design, in which calls are routed between parties using centralised signalling intelligence. It is possible to predict how a call will travel physically across the PSTN and therefore what governments will have jurisdiction over the terms of its carriage. In contrast, Internet services operate on top of telephony networks (but also other networks), and their geography is dynamic and unpredictable.

Yet it is clear that some form of governance of the Internet—even if only self-governance—is necessary if we are to manage those public policy issues that are left unaddressed by, or even run counter to, the constraints of the Internet’s architecture. As Biegel puts it:

The question is no longer whether cyberspace as a whole can or should be regulated, but whether and to what extent individual problem areas within particular cyber spaces can or should be addressed via regulation.[1]

The purpose of the IGF as stated in the Tunis Agenda is to address such issues: “We further recognise that there are many cross-cutting international public policy issues that require attention and are not adequately addressed by the current mechanisms.”[2]

Accepting the jurisdictional constraints that will impede governance of the Internet by conventional legal means, there are nonetheless various other ways in which human affairs are governed. The principles that we have above been describing individually as “values” or “ethics,” and collectively as “ethos” or “culture,” are clearly not of the same status as legal rules, and yet they have a powerful effect on the behaviour of Internet users.[3] Neither does the Tunis Agenda seem to be speaking only of legal rules when it describes the IGF as a forum for the “development of public policy,”[4] yet surely it is intended that the IGF’s output will have some practical impact on Internet governance, or the forum would service only a symbolic purpose.

This illustrates the fact that governance is a broader term than government,[5] and that it can be accomplished through a broader variety of mechanisms than the legislative, executive and judicial acts that government performs. A closer synonym for governance is “management,” and in the literature of public administration Rhodes has isolated three mechanisms by which governance may be exercised: hierarchies, markets and networks.[6]

The reference to hierarchies as a form of governance includes the use of laws and bureaucratic regulation to control behaviour. Markets are a mechanism of governance in that the behaviour of consumers can be regulated by the basic economic laws of supply and demand. Networks are a more complex hybrid form of governance which involves partnerships of trust between governments, the private sector and the community, and collaborative decision-making procedures such as will be examined in detail in Chapter 4. Pal has suggested that governance by network is epitomised by the emergent forms of governance found on the Internet.[7] But more particularly for our purposes, the template for the IGF in the Tunis Agenda embodies the concept of governance by network well.

From a parallel but slightly broader perspective, Lessig has identified four mechanisms by which governance can be exercised: laws, markets, social norms and code (the last of which he also describes as architecture or technology,[8] and which Reidenberg described as the lex informatica[9]). The first two of these are largely synonymous with Rhodes’ hierarchies and markets, and the effect of the third and fourth are respectively the social and architectural forces of the Internet that guide users’ behaviour online.

There are a number of other models of governance that have been specifically developed in relation to the Internet. Biegel, for example, in writing on the governance of Cyberspace, considered three regulatory mechanisms: legal frameworks within individual countries, international cooperation, and changes in the architecture of the Internet itself.[10] The first is clearly a type of governance by rules, the second could also be a type of governance by network, and the third is equivalent to Lessig’s code and Reidenberg’s lex informatica.

Norms appear to be missing from Biegel’s model, but they are added in the very similar model of Weber, in the form of governance through self-regulation[11] (which Biegel had excluded on the grounds that it is simply the “default position”).[12]

Expanded further into five regulatory models (one of which, again is the status quo), Caslon Analytics subdivides governance by rules into national law or the “digital ring fence” approach, international law or the lex informatica (not to be confused with Reidenberg’s usage of that phrase, which Caslon Analytics terms “code as law”), and the creation of a new global body.[13]

Similar too are Vedel’s four models of Internet governance: community governance (which is largely governance through norms within a relatively culturally homogeneous community), market governance, hierarchical or state regulation, and associative regulation. Associative regulation is Vedel’s closest equivalent to governance by network, being based upon voluntary agreements between stakeholder groups (though Vedel asserts that “it rarely exists autonomously, and generally requires state intervention either in its design, or its application”).[14]

A slightly modified synthesis of all these typologies of control would then suggest that governance can be exercised by means of rules (that is, laws or hierarchies), norms, markets, architecture (that is, the broadest sense of code) and networks. Each of these will be examined again in turn with reference to their suitability as tools for governance of the Internet.

Notes

[1]

Biegel, Stuart, Beyond Our Control?: Confronting the Limits of Our Legal System in the Age of Cyberspace (2001), 119

[2]

WSIS, Tunis Agenda for the Information Society (2005), paragraph 60.

[3]

Marshall, Garry, Internet and Memetics (1998).

[4]

WSIS, Tunis Agenda for the Information Society (2005), paragraph 68.

[5]

Rosenau, James N, Governance, Order and Change in World Politics (1992), 4

[6]

Rhodes, R A W, The New Governance: Governing Without Government (1996)

[7]

Pal, Leslie A, Virtual Policy Networks: The Internet as a Model of Contemporary Governance? (1997)

[8]

Lessig, Lawrence, Code and Other Laws of Cyberspace (1999), 87

[9]

Reidenberg, Joel R, Lex Informatica: The Formulation of Information Policy Rules Through Technology (1998)

[10]

Biegel, Stuart, Beyond Our Control?: Confronting the Limits of Our Legal System in the Age of Cyberspace (2001), 124

[11]

Weber, Rolf H, Regulatory Models for the Online World (2002), 80

[12]

Biegel, Stuart, Beyond Our Control?: Confronting the Limits of Our Legal System in the Age of Cyberspace (2001), 221

[13]

Caslon Analytics, Cyberspace Governance (2005)

[14]

Vedel, Thierry, Four Models for Internet Governance (2005), 65