|Multi-Stakeholder Public Policy Governance and its Application to the Internet Governance Forum|
A plausible model of anarchistic self-governance of the Internet is one of governance through networks of consensual arrangements between Internet stakeholders at various levels, potentially incorporating the use of any other mechanisms of governance besides rules. To relate this to the relevant layers of the Internet’s network stack, these may include the use of interconnection agreements between ISPs at the network layer (an example of governance through markets), the application of IETF standards at the transport layer (utilising governance by architecture), and the promulgation of AUPs (Acceptable Use Policies) and netiquette at the application layer (demonstrating governance by norms).
But because these existing mechanisms leave gaps in the sphere of public policy governance of the Internet, comprehensive anarchistic proposals for reform cannot simply be arguments for the status quo, but should call for or at least accommodate a superadded Internet public policy governance network (if a very loose and decentralised one).
Even in John Perry Barlow’s utopian vision of an anarchistic Internet, he understood its self-governance as a regime under development, rather than one fully-formed; thus writing, “We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours.”
Writing in the same year, Johnson and Post sought to explain how such a regime of independent self-governance for the Internet might come into being, in an international system already populated with governmental and intergovernmental authorities. They argued that the role of states in such a regime is simply to grant comity to the decentralised, emergent governance of Internet stakeholders, just as medieval governments recognised and accorded independent status to the law merchant. Essentially, governments are called upon to regard cyberspace as a distinct jurisdiction of its own.
Reidenberg provides more detail of how such a regime might function in practice, noting that since ISPs and computer network administrators wield significant control over cyberspace, they provide a convenient locus of control for an Internet governance regime, with each network essentially taking the place of a state in the international public policy governance regime. This is already seen in some issue areas, such as the extent to which AUP terms imposed by ISPs and content providers are used to regulate spam, cybercrime and even IPRs.
However, to the extent that the public policy choices embodied in these terms are made by the private sector unilaterally, they may not reflect broader public values. It is on this basis that the Council of Europe has argued at the IGF that in delegating governance authority to a non-state body such as ICANN, states are not excused from their duty of oversight to ensure that human rights are protected, and should ensure that they maintain some way to make such bodies ultimately answerable to the international community.
The same problem applies to the reliance upon architecture as the foundation of an anarchistic governance network. Although certain core values embedded in the architecture of the Internet cannot be modified without fundamentally reconstituting the network, the code that shapes the end user’s Internet experience is distributed throughout all layers of the network stack, and there are various points at which it can more easily be reshaped to accord with alternative sets of values.
Biegel provides more detail of how architectural or “code-based changes” in this broader sense can be actively used as a mechanism of public policy governance for the Internet, rather than merely acting as such by default in disseminating the core values of the hacker ethic.
What is required in order for the anarchist programme to become consistent with democratic principles is that the public policy choices underlying the contractual regulation of Internet usage by ISPs and content providers, and those embedded in the Internet’s architecture and other code by any of the means identified by Biegel, be consensually developed within a multi-stakeholder forum, rather than unilaterally by the private sector or the technical community. Even for the anarchist, there is no reason why the IGF could not be that forum. However, it would be an IGF which substantially differs from that which exists now.
This is a concept that Zittrain derides as “Internet separatism,” describing Johnson and Post’s article as “now thoroughly dated”: Zittrain, Jonathan, Be Careful What You Ask For: Reconciling a Global Internet and Local Law (2003), 22. See also Reidenberg, Joel R, Technology and Internet Jurisdiction (2005) .
Biegel, Stuart, Beyond Our Control?: Confronting the Limits of Our Legal System in the Age of Cyberspace (2001), 219. Since these may also vary from one computer network to another, there is also the potential for a “race to the bottom,” whereby users are attracted to the network enforcing the least stringent standards, though this outcome is difficult to avoid in any anarchist model: see Section 220.127.116.11.
Council of Europe, Council of Europe Submission to the Internet Governance Forum (2006), 10. On the other hand to the extent that, being developed in the shadow of the law, AUPs simply reflect underlying governmental regulation, they are also deficient.
See Section 6.2.2.