Regulating Internet, by Law?
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Recently, Markus Kummer, head of the Working Group on Internet Governance (WGIG) for the World Summit on the Information Society, visted the Berkman Center. I was asked and had the pleasure to speak for three minutes about Internet regulation by law (vs. technology, markets, or social norms.) Here is my three-minutes take on it:
In the past 12 years, much of what we call today the Internet Governance debate has been about the question whether governments and national legislators shall step in to regulate human behavior on the Internet. Ideal-typically, one might distinguish between two positions at the ends of a spectrum of opinions about Internet regulation by law:
On the one end, we have John Perry Barlow and friends, arguing that cyberspace does not lie within the borders of governments. The representatives on this end of the spectrum – the cyber-exceptionalists – argue in favor of a laissez-faire approach.
The representatives of a legalistic approach to Internet regulation, by contrast, perceive the Internet as a subject of regulation that is not different from any other technological phenomena. Under this approach, governments and parliaments are obliged to address Internet governance issues and regulate cyberspace by East coast code.
A fair amount of literature and many conferences, workshops, panels, etc. have played out these and other approaches and have explored alternative modes of regulation beyond law. And, of course, regulatory history provides evidence that there is middle-ground, too.
However, only occasionally we have read comprehensive theoretical analyses about “law” in cyberspace as such. In other words: Much less attention – especially in the United States, but also abroad – has been paid to the fact that law itself is a multi-dimensional mode of regulation. Why multi-dimensional? Because both at the national and international level law provides an entire set of regulatory strategies, ranging from mandatory regimes to approaches aimed at cooperation (soft law), ex post (therapeutic) versus ex ante (preventive) legislation, instrumental versus symbolic legislation, etc. Moreover, law provides a variety of regulatory instruments such as substantive requirements, prozeduralization of law, provisions working with financial incentives, aimed at education or information, and so forth. Law is also multi-dimension with regard to the forms of regulation, the density and intensity of regulation, etc.
Further, it strikes me that we have not discussed thoroughly enough what the different functionalities of law are – even in the realm of “free cyberspace.” In my perception, cyberlawyers have a long-standing tradition to understand law as a constraint on human behavior. But law can be more than a mere constraint. In fact, law does often have an “enabling function” and a “leveling function,” too. Moreover – and these characteristic are particularly important in the context of global governance vis-�-vis the global reach of the Internet – law-making (including soft-law-making) provides opportunities for participation and representation, provides structured fora and discursive processes to articulate and address regulatory issues und legitimate concerns.
In short, we should make very clear that (cyber-)law is not – or at least not necessarily – a simplistic intervention mechanism aimed at constraining human behavior and limiting freedom, but has much more to offer, both at the national and international level. In any event, to get the balance right, to apply the legal toolset with good judgment, and to avoid regulatory pitfalls remain the big challenges for all of us.
