5.4.2. Hierarchical

Other proposals for reform to Internet governance arrangements take issue with anarchistic models on the basis that they are, by nature, voluntary, which is a significant limitation in certain issue areas such as cybercrime, in which antisocial behaviour cannot be sufficiently curtailed through norms, markets or architecture. Thus Rony and Rony list authority amongst the criteria to be considered in selecting a new Internet governance regime.[1]

There are three main hierarchical models of Internet governance that are consistent with governance by network in some measure. The most radical of these is for an extensive autonomous body of Internet-specific international law to be developed by an intergovernmental authority (in consultation with other stakeholders), which would in one stroke solve many of the most acute jurisdictional issues to which the Internet gives rise. As Goldsmith and Wu write, it would mean “no conflicting laws, no worries about complying with 175 different legal systems, no race to the bottom.”[2]

Neither would it be without precedent: international maritime law in fact provides a close analogy for what is proposed.[3] In an online context, though on a less comprehensive scale, the UDRP also offers an example of this model in action, in that case with WIPO acting as the relevant intergovernmental authority, being the progenitor of the scheme and the dominant provider of UDRP arbitration services.

On a larger scale, this model would require a legal framework for the Internet to be developed under the auspices of either a new intergovernmental entity established to do so,[4] or an existing intergovernmental authority. The WTO has been proposed by some for this purpose,[5] given that it offers a ready-made mechanism of enforcement lacking in current Internet governance institutions. However at least some commentators, in anticipation of the WSIS principles, have acknowledged the need for multi-stakeholder participation, which would count quite strongly against the selection of the WTO as a forum for the development of a legal regime for the Internet. Schuler for example stated in 1998:

Although government needs to assume a stronger role in this area, its objectives must not be accomplished through edicts or heavy-handed bureaucracies, but through innovative, flexible experiments conducted in partnerships with citizen groups, NGOs, and, perhaps, business.[6]

Kobayashi and Ribstein concur,[7], proffering instead a second model of hierarchical Internet governance based not around a single regulatory regime but a multiplicity of networked regimes. This would limit “the extent to which powerful interest groups can control regulation and secure inefficient rules that transfer wealth from weaker interest groups,” whilst offering a variety of regulatory approaches to “suit different sets of preferences, including a preference for no regulation,” and thereby promoting “an evolutionary process as individuals and firms choose the laws under which they prefer to operate.”[8] This roughly equates to the model of competition between hierarchically-organised networks described at Section 4.2.5.

However in order for this to work, freedom of exit from each jurisdiction would be required. Although exit from a jurisdiction’s reach can, at least for purposes of trade and commerce, be as simple as the exercise of a contractual choice of law clause, it is a more formidable obstacle in other issue areas, particularly for those whose geographical roots are firmly planted, as are most individual Internet users. This model therefore works better where the competing regulatory regimes include a range of governance mechanisms other than the rule of states, between which Internet users, no matter where situated, actually have a meaningful choice. However, so modified, the model loses its hierarchical quality.

The third model of hierarchical Internet governance is something of a compromise between the first two, in that it calls for an intergovernmental authority to assume responsibility for public policy issues that are specifically impacted by existing Internet governance processes and institutions, but without seeking to establish a broader regime of governance for all Internet-related issue areas, which are left to be dealt with by diverse other mechanisms. This model is exemplified by the early support of commentators for direct involvement of the ITU and WIPO in addressing the disconnect between the DNS and trademark law.[9]

In more recent times it is the ITU that has most vocally advocated the position that an intergovernmental authority would be more legitimate and effective than a hotchpotch of civil society and private sector organisations in dealing with public policy issues arising in the administrative and technical governance of the Internet, and that the ITU in particular, representing all national telecommunications regulatory authorities, would be the most appropriate intergovernmental authority to assume this role.[10]

The ITU’s position is that it is difficult for governments to participate in processes that are not formally intergovernmental, such as those of ICANN which is formally a US company and therefore subject to the control of its domestic authorities. Whilst governments can (and do) still participate informally in bodies such as ICANN and the IETF, the Director of the ITU’s TSG contended ahead of the Tunis summit of WSIS that “there is a big difference between the legitimacy that comes from formal participation, as compared to informal participation,” and stated:

Concretely, it might be helpful to build on ITU’s unique position as an intergovernmental organization that has private sector members—especially since those active ITU members are also major players in providing Internet infrastructure—and to consider relying on ITU (and other IGOs as appropriate) to provide appropriate public policy frameworks at the international level for what concerns Internet matters.

... it is preferable to have existing inter-governmental organizations under the UN system to take care of issues that require inter-governmental coordination, while recognizing the role of existing international and private sector organizations with respect to technical and operating matters. It would be cost-effective to charge existing UN family organizations with this task.[11]

Since the Tunis phase of WSIS, the ITU’s ambitions in this regard have of course been dealt a serious, and probably fatal setback. However the ideal of “enhanced cooperation” to which they have given way can be regarded as the successor of this hierarchical model for Internet governance. Exactly what it is to entail in practice however, and the extent to which the IGF will have a role to play in it, remain very open questions.

Notes

[1]

Together with stability, accountability, security, priority (that is, accommodating the first-come, first-served principle), structure, and harmonisation (that is, integration with domestic law on issues of international property and privacy: Rony, Ellan & Rony, Peter, The Domain Name Handbook: High Stakes and Strategies in Cyberspace (1998), 10–11.

[2]

Goldsmith, Jack L & Wu, Tim, Who Controls the Internet?: Illusions of a Borderless World (2006), 26

[3]

See Johnson, David R & Post, David G, Law and Borders—the Rise of Law in Cyberspace (1996), although the authors do not concur with the view that the body of law should be developed by an intergovernmental authority.

[4]

Franda, Marcus F, Governing the Internet: The Emergence of an International Regime (2001), 74; Zittrain, Jonathan, ICANN: Between the Public and the Private—Comments Before Congress (1999)

[5]

Weber, Rolf H, Regulatory Models for the Online World (2002), 78; Biegel, Stuart, Beyond Our Control?: Confronting the Limits of Our Legal System in the Age of Cyberspace (2001) , 182

[6]

Schuler, Doug, How Do We Institutionalize Democracy in the Electronic Age? (1998)

[7]

Kobayashi, Bruce H & Ribstein, Larry E, Multijurisdictional Regulation of the Internet (2003), 214

[8]

Kobayashi, Bruce H & Ribstein, Larry E, Multijurisdictional Regulation of the Internet (2003), 176

[9]

Foster, W A, Registering the Domain Name System: An Exercise in Global Decision-Making (1997)

[10]

Huston, Geoff, ICANN, the ITU, WSIS, and Internet Governance (2005)

[11]

Zhao, Houlin, ITU and Internet Governance (2004), 12–13