Law and Information

At a PrepCom meeting for the WSIS II summit, the European Union reportedly changed its position and now advocates for formal international oversight of ICANN. The rhetoric has shifted as well: Several news reports (some of them by quoting government officials) present the story as a question about “who controls the Internet,” suggesting that currently the U.S. is in control of the Internet. John Palfrey has a chrisp response to such a misleading notion of control. It seems to me that this recent switch in the EU’s position contributes to the “politics of control” sections of courses like this one — using the term “politics” in a slightly different interpretation, though.

BTW, some of you might want to take a (second) look into Herbert Burkert‘s ICANN piece “About a Different Kind of Water,” discussing some approaches to the problem from a European perspective.

Shame on me – I almost missed this long-awaited report on Internet Governance. More on that score later on – click here for initial comments. The definition of Internet Governance is all-inclusive:

Earlier this year, we reported that at all major search engines in Germany (Google, Lycos Europe, MSN Deutschland, AOL Deutschland, Yahoo, T-Online, and t-info) have reached an agreement to filter harmful-to-minors content.Recently, Marcell Machill tested the search engines’ complicance with their own code of conduct. Find a summary of the results here.

James Grimmelmann and others are blogging live from ISP’s terrific “The Global Flow of Information” conference at Yale Law School. Earlier today, Berkman’s executive director John Palfrey delivered a talk about Information Governance in general and Internet governance in particular. John pointet out, among other things, that the Internet governance discussion is incredibly amorphous. After outlining the current state and scope of the governance discussion, John made the argument that it might be helpful to identify — and foucs on — specific governance problems and/or issues such as filtering rather than to think and talk that much about “omnibus regulation” as we call it in Europe. Such a problem-oriented approach will prompt a discussion of what we really value about the Internet and what the guiding principles for Internet regulation should be.
Congratulations and thanks to our friends at the ISP for putting together such a great conference program with a truly impressive line-up of speakers.

EDRI-gram, a bi-weekly newsletter about digital civil rights in Europe, draws our attention to an earlier report by German online newsletter Heise, which reported a couple of days ago that all major search engines in Germany (Google, Lycos Europe, MSN Deutschland, AOL Deutschland, Yahoo, T-Online, and t-info) have reached an agreement to filter harmful-to-minors content which will make it much more difficult for German users to access such content. For this purpose, the search engines agreed to establish and run a self-regulatory organization that will block websites considered to be harmful based on a list of URLs provided by a government agency in charge with media content classification. According to the Heise report, the search engines take these steps because they fear that European legislators might become active if the harmful-to-minors-problem isn’t addressed by the industry itself.
Among many interesting details: (1) The search engines are not allowed to make public which sites are filtered. (2) It seems unclear how content considered to be harmful to minors can be searched and accessed by adults under the regime. Again, clash of cultures. For a much earlier (2002) analysis of Google content filtering in Germany, see this report by Professor Jonathan Zittrain and former Berkmaniac Ben Edelman.

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.