issues

     the debate about governance

     implications

• a system of rules, formalised as law or otherwise, that articulates norms for behaviour
• institutions to develop, interpret and enforce those rules
• agreement among those who administer the rules and are affected by them that the regulatory regime has some basis at a conceptual and practical level 

Regulating cyberspace thus requires the development of laws and codes of practice that reflect specific challenges such as the 'borderless' nature of the internet, uncertainty about identity and authentication, and debate about privacy. 

Although cyberspace is "everywhere and nowhere", no-one lives in cyberspace. The internet has thus not abolished traditional local/national jurisdictions or the international agreements that provide a global legal framework by harmonize differences between those jurisdictions. It's unlikely to be described using a comprehensive Lex Internet. 

Regulation also assumes action by institutions - whether existing or new, public or private - operating at a local, national and international level. 

Some theorists identified later in this guide have argued for entirely new institutions, often separate from existing policy development, standard setting and dispute resolution mechanisms. Others - more credibly - prefer not throw away the baby and the bath water, instead emphasising the scope for existing courts, parliaments, businesses, police forces and other bodies.

Just as importantly, governance of cyberspace involves some sense by those who go online that the regulatory regime is 'legitimate', that particular behaviour is in principle unacceptable and in practice is likely to result in sanctions. Those sanctions might be 'trivial', such as a business's loss of customers. Or they might involve courts and police forces. 

Major legitimacy challenges include 

• perceptions that particular activities are legal or without consequence (eg in principle "information just wants to be free", in practice you won't get caught)
• claims that there should be no regulation per se, and more subtly 
• a refusal to engage with institutions (eg participate in the operation of bodies such as auDA) or address technological realities (eg government legislation that's clearly ineffective because of basic features of the network).

     overviews

The exemplary Code & Other Laws of Cyberspace (New York, Basic Books 99) by Lawrence Lessig is an introduction to governance issues from a legal perspective. Graham Greenleaf's 1998 Uni of NSW Law Journal article An Endnote on Regulating Cyberspace: Architecture vs Law considers Australian public policymaking. 

For a wider view we recommend Brian Loader's The Governance of Cyberspace: Politics, Technology & Global Restructuring (London, Routledge 97), Klaus Grewlich's Governance In Cyberspace: Access & Public Interest in Global Communications (Hague, Kluwer 99) and  ICT Law & Internationalisation: A Survey of Government Views (Hague, Kluwer 00) by Bert-Jaap Koops.

Ethan Katsh's Law in a Digital World (Oxford, Oxford Uni Press 95) builds on his 1989 study The Electronic Media and the Transformation of the Law in asking "are these new technologies merely more efficient versions of the old? Are they simply new containers that bring the same product to the users in a new way? Do they simply move information faster? Or does the use of information in a new form particularly by an institution for whom information is a highly valued commodity, change the institution, the user and those who come in contact with the user?" There's a more pragmatic analysis in Regulating The Global Information Society (London, Routledge 00) edited by Christopher Marsden.

David Post's polemic Anarchy, State & the Internet: An Essay on Law-Making in Cyberspace articulates arguments for and against a communitarian approach.

Michael Hart's lucid The American Internet Advantage: Global Themes & Implications of the Modern World (Lanham, University Press of America 00) and papers in Changing the Rules: Technological Change, International Competition & Regulation in Communications (Washington, Brookings Institution 89) edited by Robert Crandall & Kenneth Flamm consider ongoing US dominance of the web. Giampiero Giacomello's paper on National Governments & the Regulation of the Internet offers an EU perspective.

Some of the analysis in the series of papers from the Harvard Information Infrastructure Project (HIIP) is looking quite dated. However, the HIIP volumes are invaluable. We particularly commend Coordinating the Internet (Cambridge, MIT Press 97) ed] Brian Kahin & James Keller - governance, domain naming, trademarks, traffic management and pricing - and Borders In Cyberspace (97) ed] Brian Kahin & Charles Nesson - privacy, global rule-making, jurisdictions and other issues.

The Control Revolution: How the Internet is Putting Individuals in Charge & Changing the World We Know (New York, PublicInterest 99) by Andrew Shapiro argues that while governance is a key concern, "our notions of regulation, rights and justice will have to evolve as power shifts increasingly to individuals". Catchy title, but we're unconvinced by the argument. Shapiro is a Fellow at Harvard's Berkman Internet Law Centre.  

Shapiro's assessment is undermined by essays in Non-State Actors & Authority in the Global System (London, Routledge 00), edited by Richard Higgott & Andreas Bieler, and Contesting Global Governance: Multilateral Economic Institutions & Global Social Movements (Cambridge, Cambridge Uni Press 00) by Robert O'Brien & Anne Marie Goetz and Bringing Transnational Relations Back In: Non-State Actors, Domestic Structures & International Institutions (Cambridge, Cambridge Uni Press 95) edited by Thomas Risse-Kappen.

There's an outstanding overview of national and international regulatory mechanisms in Global Business Regulation (Cambridge, Cambridge University Press 00) by John Braithwaite & Peter Drahos. 


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