Global Networks and Local Values A Comparative Look at Germany and the United States (2001) / Chapter Skim
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8 Governance in Cyberspace Multi-Level and Multi-Actor Constitutionalism
8 Governance in Cyberspace Multi-Level and Multi-Actor Constitutionalism
Pages 190-204
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From page 190... ...
must oversee certain technical operations such as address assignment and domain-name administration. But for political, commercial, and social issues, what is the relevance of traditional means of iSee OECD, 1997, Internet Domain Names: Allocation Policies, OECD Document GD(97~207, Paris.
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From page 191... ...
In addition, the market creates incentives for intermediaries in the electronic marketplace to offer services that protect the interests of its customers both content providers and users. Users, for example, can choose an Internet provider that offers a selection of Web sites suiting the user's tastes while blocking sites the user would prefer not to see.2 Users can, of course, help themselves rather than depend on intermediaries.
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From page 192... ...
They even allow a person to move in a virtual sense from one country to another without a passport, visa, or work permit. These new exit options reduce the regulatory power of the individual nation-state because its traditional tool for regulation public law generally applies only within its own borders.
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From page 193... ...
And it is costly in that disempowering the intermediaries risks slowing the national penetration rate of the Internet, with all of the attendant economic and social consequences. 8.2.4 International Legal Harmonization Some analysts regard the international harmonization of laws as the only way to meet the challenges of global networks.5 International cooperation in implementing and enforcing rules can be accomplished through agreements that assign responsibility for regulation, or through harmonization of the regulations themselves.
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From page 194... ...
That country can create a "regulation leak" that enables highly mobile content providers to evade international regulation; or, if the country includes a significant enough group of network participants, it can, de facto, force its own regulatory structure on the international community. 8.2.5 The Use of Internationally Coordinated Commercial Laws To what extent might commercial law, rather than public law, be used to regulate global networks?
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From page 195... ...
Should some provisions, such as an anti-reverse-engineering clause, be prohibited when they are actually legal under patent law? Default rules also offer a way in which contract law can insert local values into the governance of international commercial activity.
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From page 196... ...
The rules of the international law of civil procedure regulate the authority to adjudicate on national jurisdiction, and they regulate the recognition and enforcement of foreign judgments as well. In contrast to public laws and regulations, which have essentially no effect beyond a state's borders, commercial law's role in accepting foreign legal action (e.g., in enforcing foreign judgments)
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From page 197... ...
It would be far better at the moment to consider Internet cases individually and de nova, accumulating experience that might ultimately be used to identify valid abstract norms. As promising as it is, the potential of commercial international law should not be overestimated.
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From page 198... ...
It may well be that the Internet world will require new mechanisms (for example, withdrawing a domain name, or striking the IP addresses from domain servers and routers) for enforcing judgments that relate to important assets in this new technological setting.~7 8.2.6 Self-regulation Without State Intervention Many have argued that the state should refrain completely from attempting to regulate the Internet and instead allow network participants to regulate themselves.
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From page 199... ...
In principle, one possible approach to giving contractual status to a given set of rules associated, perhaps, with a particular Web site or service would be to require all users, at the time of logging in,22 to declare their willingness to accept the rules. But it is highly questionable whether such a vague commitment concerning future, hypothetical actions could have legal validity.
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From page 200... ...
The protection of local values quite often amounts to nothing more (or less) than the recognition and protection of the differing ideas of many small groups that are unable to have any significant influence on the rules in a selfregulatory regime.
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From page 201... ...
This system of governance involves a number of challenges: coordinating the legal and political actions of national governments; adding and integrating new forms of transnational institutions such as the European Union; making use of diplomatic conferences or permanent international organizations such as the ITU or WTO, when appropriate; and recognizing and facilitating voluntary self-regulatory mechanisms involving industry, labor, public interest, and other community interest groups. Applied to cyberspace, with its multitude of activities and many constituencies, governance may basically serve an "umbrella" function, asserting certain normative principles, explicitly recognizing the set of agreements and arrangements that deal with the subjects of public international law, and providing some level of legitimacy to the principles and self-regulatory schemes that govern, respectively, business, civil society and other nongovernmental entities.
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From page 202... ...
For instance, at the G-7 Conference in Brussels in February 1995, the following policy principles were endorsed by the conferees: promoting dynamic competition; encouraging private investment; defining an adaptable regulatory framework; providing open access to networks; ensuring universal provision of, and access to, services; promoting equality of opportunity to the citizen; promoting diversity of content, including cultural and linguistic diversity; and recognizing the necessity of worldwide cooperation, with particular attention to less-developed countries. These principles have been refined in statements and reports emerging from a number of international governmental meetings, such as the 1997 Ministerial Conference on Global Information Networks in Bonn and the 1998 Organization for Economic Cooperation and Development (OECD)
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From page 203... ...
The apparent enthusiasm for new governance approaches should not, however, obscure two realities. First, the more important that telecommunications, information services, electronic commerce, and global information networks become to national societies and economies, the less likely 280ECD Ministerial Conference.
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From page 204... ...
This approach would be tantamount to "constitutionalizing" public international law that in the past has served little more than a coordinative function for sovereign governments. Public authority would become the joint and separate responsibility of a multiplicity of coordinated authorities, with nation states being but one of the elements of this system.29 In addition to multilevel authority, the system would have a multiplicity of actors.30 In its umbrella function, this constitutionalized international legal systems might establish normative principles, agreements, and procedures pertaining not only to subjects appropriate for public international law but also to self-regulatory schemes that would apply to business, labor, civil society, and other nongovernmental entities.
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