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section heading icon     issues

This page identifies some key regulatory issues and points to basic writing about particular challenges. Is there law in cyberspace? Whose law is it? Does it work? How is it evolving? 

It covers -

subsection heading icon     the debate about governance

Regulation of cyberspace became inevitable once the net ceased to be the realm of wizards or scientists and became an infrastructure connecting millions of individuals, businesses and governments. Mythologies to the contrary, emerging systems of governance are an extension of the basic standards that allow devices and networks to join together via the internet. 

For better or worse, 'normalisation' of the web means that it is just another part of daily life. Claims that we can become citizens of the ether or that cyberspace is (and should be) a realm without law are no longer very credible. Overall, the guides on this site suggest that the fun is just beginning, as we all move from airy generalities to the hard tasks of developing practical law, industry codes, enforcement and dispute resolution mechanisms, and the community perceptions that underpin any regime.

Much of the debate about governance of cyberspace has been shaped by what critics such as Richard Barbrook have dubbed the 'Californian Ideology', a heady mix of faith in the emancipatory power of new technologies, visceral hostility to regulation and belief that markets will solve all problems. Its proponents argue that regulation is neither desirable nor possible, since the net - a personification of markets - treats such efforts as "damage and routs around it". 

It is reflected in disagreements about the role and operation of bodies such as ICANN. More broadly it is a major theme of media coverage, government policy making and thinking about life online. While the 'mainstreaming' of the web means that cyberlibertarianism is likely to be less significant in future, it will be an influence throughout this decade. 

subsection heading icon     implications

Online or offline, regulation involves the interaction of three factors:

  • 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).

There is a valuable introduction in Jonathan Weinberg's article on ICANN & the Problem of Legitimacy and in the essays in Crypto Anarchy, Cyberstates, & Pirate Utopias (Cambridge: MIT Press 1999) edited by Peter Ludlow.

subsection heading icon     overviews

The provocative Code & Other Laws of Cyberspace (New York: Basic Books 1999) by Lawrence Lessig is an introduction to governance issues from one US legal perspective. A more nuanced - and for us more convincing - analysis is provided in Anne-Marie Slaughter's A New World Order (Princeton: Princeton Uni Press 2004).

Graham Greenleaf's 1998 Uni of NSW Law Journal article An Endnote on Regulating Cyberspace: Architecture vs Law, Craig McTaggart's 1999 Governance of the Internet's Infrastructure: Network Policy for the Global Public Network thesis (PDF) and Joel Reidenberg's 2004 States & Internet Enforcement paper consider Australian, Canadian, US and global public policymaking. 

For a wider view we recommend Brian Loader's The Governance of Cyberspace: Politics, Technology & Global Restructuring (London: Routledge 1997), Klaus Grewlich's Governance In Cyberspace: Access & Public Interest in Global Communications (Hague: Kluwer 1999) and  ICT Law & Internationalisation: A Survey of Government Views (Hague: Kluwer 2000) by Bert-Jaap Koops, The Emergence of Private Authority in Global Governance (Cambridge: Cambridge Uni Press 2002) edited by Rodney Hall & Thomas Biersteker and Imperialism, Sovereignty & the Making of International Law (Cambridge: Cambridge Uni Press 2005) by Anthony Anghie. Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement (New York: Public Affairs 2007) by Brian Doherty offers context.

Ethan Katsh's Law in a Digital World (Oxford: Oxford Uni Press 1995) 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 is a more pragmatic analysis in Regulating The Global Information Society (London: Routledge 2000) 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 2000) and papers in Changing the Rules: Technological Change, International Competition & Regulation in Communications (Washington: Brookings Institution 1989) 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, reflected in 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.

Some 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 1997) edited by Brian Kahin & James Keller - governance, domain naming, trademarks, traffic management and pricing - and Borders In Cyberspace (1997) edited by 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 1999) by Andrew Shapiro argues that although 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; he offers a more succinct rendition in his 2000 Columbia Science & Technology Law Review article on The 'Principles In Context' Approach To Internet Policymaking.  

Shapiro's assessment is undermined by essays in Non-State Actors & Authority in the Global System (London: Routledge 2000), edited by Richard Higgott & Andreas Bieler, and Contesting Global Governance: Multilateral Economic Institutions & Global Social Movements (Cambridge: Cambridge Uni Press 2000) by Robert O'Brien & Anne Marie Goetz and Bringing Transnational Relations Back In: Non-State Actors, Domestic Structures & International Institutions (Cambridge: Cambridge Uni Press 1995) edited by Thomas Risse-Kappen.

There is an outstanding overview of national and international regulatory mechanisms in Global Business Regulation (Cambridge: Cambridge Uni Press 2000) by John Braithwaite & Peter Drahos. 

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version of September 2007
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