overview issues models jurisdictions law & disorder government advocacy resources

models This page looks at models for regulation of cyberspace. It is not comprehensive but should give you a map of how the pieces fit together (and how Australian law will evolve to accommodate international developments, such as the EU privacy regime). It will also offer insights into the role of bodies such as ICANN, often unfairly criticised as the unelected government of cyberspace      four models Debate about the shape of governance is highly contentious.  Leaving aside the romantic notion that any governance is bad governance (or that the questions can somehow be ignored),  arguments for regulating cyberspace reflect four models: 1) de facto rules emerging from decisions made by online service providers and users, with disputes being resolved on an exceptional basis through national/international private litigation and arbitration.  An example is the regime described in "Chaos prevailing on every continent": Towards a new theory of decentralized decision-making in complex systems, a paper by David Post & David Johnson. Matthew McCloskey's ILPF Bibliography of Internet Self Regulation is dated but valuable. 2) creation of a new international organization to establish rules and, in some proposals, to administer them.  An example is the recommendation in the American Bar Association's major cyberspace law report for a global commission to set international rules regarding banking, consumer protection, privacy, taxation, gambling and other online activities.  3) new treaties or multilateral international agreements to establish broad-ranging 'whole-of-cyberspace' rules.  Those agreements would offer uniform treatment across jurisdictions and across areas of activity. They would build on existing agreements and institutions, such as the World Trade Agreement, the International Telecommunications Union agreements and the various international copyright conventions under the auspices of the World Intellectual Property Organisation. An example is the proposal by the People for Internet Responsibility (PFIR) group for a 'Representative Global Internet Policy Organization', ie an entity that combines wide policy and decision making responsibilities about most aspects of cyberspace. 4) the status quo, ie a patchwork of global agreements and bilateral/multilateral agreements (such as the EU-Canada privacy agreement and the North American Free Trade Agreement) that broadly harmonise national government-based regulatory regimes.  In the words of one critic, those regimes would be characterised by "geographically-based, centralized, top-down governance", with a continuation of existing disputes over jurisdiction (explored in the next page of this guide), inconsistencies of interpretation and uneven legislative development. At the national level an example is the European Commission's package of Legislative Proposals for a new Regulatory Framework for Electronic Communications, with directives on telecommunications privacy, access and interconnection among others. There's another view in the speech by ITU Secretary-General Peka Tarjanne on Internet Governance: Towards Voluntary Multilateralism.      perspectives David Post's 1995 paper Anarchy, State, & the Internet: An Essay on Law-Making in Cyberspace and Dan Burk's provocative Muddy Rules in Cyberspace paper suggest that 'fuzzy' rules (and disputed institutions) may be the future of the internet. They highlight the likelihood of high internet transaction costs because of the number of parties involved, the difficulty of locating the parties, increased opportunity for strategic behavior and transborder activity. Mark Lemley's more cogent paper on The Law & Economics of Internet Norms criticises suggestions that law should defer to online social norms, either by abdicating its role entirely to cyberspace self-governance, or by carving out particular roles for nonlegal rulemaking.  He notes that online norms are elusive and rapidly changing, without the consensus required for norm creation. "Neither Net 'vigilantes,' judges, nor code itself can be relied upon to identify and enforce Internet norms with an appropriate sensitivity to efficiency and policy concerns."  In 1996 US Judge Frank Easterbrook's lecture on Cyberspace & the Law of the Horse commented that there was no need for a 'law of cyberspace', just as there had been no need for a law of the horse. Existing principles were adequate. Rather than struggling to develop a body of 'cyberlaw' or new institutions, those seeking order in cyberspace should concentrate on the optimal means of applying existing legal principles.  Lawrence Lessig's rejoinder argued that similarities between the regulation of real space and regulations of cyberspace hide important differences. Both were criticised by the provocative Michael Froomkin in a paper on The Empire Strikes Back and Jane Ginsburg & Morton Janklow's paper (doc) Private International Law Aspects of the Protection of Works & Objects of Related Rights Transmitted Through Networks. There's a more balanced study in Henry Perritt's incisive 1997 paper on Cyberspace & State Sovereignty and his Law & the Information Superhighway: Privacy, Access, Intellectual Property, Commerce, Liability (New York, Wiley 96).  It complements Joel Reidenberg's 1996 paper Governing Networks & Rule-making in Cyberspace, Andreas Rutkowski's brief paper The Internet: Governance for Grabs?, John Zysman & Steven Weber's 2000 paper (PDF) Governance & Politics of the Internet Economy--Historical Transformation or Ordinary Politics with a New Vocabulary? and Autonomous Policy-Making By International Organisations (London, Routledge 99) edited by Bob Reinalda.      assessment   Away from the rarified (if often overheated) air of academia, there's little reason to believe that proposals for a radically new regime at the global or national level will progress very far. That scepticism reflects the tortuous history of international regulatory developments, explored in Braithwaite & Drahos's exemplary Global Business Regulation and in more specialised studies such as Christopher Arup's The New World Trade Organization Agreements: Globalizing Law Through Services & Intellectual Property (Cambridge, Cambridge Uni Press 00).  Some states, such as the UK, are seeking a more coherent national regime by thinking in terms of a broad 'content & carriage' information policy and amalgamating the plethora of competing regulatory agencies. However, given the complexity of some issues and the different agendas of significant interests, it is unlikely that the quick fixes proposed in Australia and the US will be adopted in any major economy.  Negroponte's naive notion that states will simply evaporate looks increasingly unjustified. Rightly or wrongly, there's widespread community support for content regulation, privacy, consumer protection and other measures which in the foreseeable future can only be implemented at a national or subnational level. While we might be 'digital', to use his jingle, our lives are analogue, fixed to at least one physical location. More fundamentally, suggestions that a non-government organisation can assume overarching policy and regulatory responsibilities without consistent government endorsement seem to be contradicted by the very low rate of participation in bodies such as ICANN.      next page (jurisdictions)