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Authority and Regulation in an Interconnected World

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06.12.2019

This is an excerpt from Reprogramming the World: Cyberspace and the Geography of Global Order. Get your free copy here.

In 1975, the United States and the USSR launched a space mission to dock an Apollo module with a Soyuz module.[1] The mission was a carefully orchestrated scientific mission that was intended to show how science for peaceful purposes could bridge ideological gaps and to further détente between the two nations. The effectiveness of the mission in political terms is a story for another day. The object here is to draw an insight from a small sidebar of the narrative surrounding the mission. The two states both had their respective docking systems. Each relied on, technically speaking, a female side which received the male side of the docking apparatus, much like a headphone jack. In the tense political atmosphere, neither side wanted to become the female side of the other’s docking system. As a result, the two countries developed an androgynous docking system that was interoperable with itself.[2] The point here is not to highlight the misogyny inherent in these terms and Cold War politics, which is a continuation of an international relations discourse that often characterizes dominance as male.[3] Instead, it is to point out that the standardized docking mechanism, which is purely a technical specification, holds a great deal of political content. The standardization creates technical interoperability, but the technical standard is the mediator of state-to-state communication. In the Apollo-Soyuz mission, it was a question of technical connection that defined the parity of the states involved as they brought their quasi-territories into proximity.

Usually, questions of standardization occur when states are already in proximity, and international telecommunication has a long history of international governance mechanisms to develop such standards.[4] The ITU as the world’s oldest international organization represents a legacy of international cooperation and coordination on telecommunications standards. It also charts a unique history through which international law was developed in such a way that it avoided sticky issues of content by favoring interconnection over interoperability. States’ ongoing ability to negotiate and adopt law in the realm of telecommunications would arguably make the international governance regime well prepared to regulate the Internet and Cyberspace, but this has not been the case. This chapter will investigate this phenomenon and argue that the development of Cyberspace governance has served to delegitimize the state as the central governance actor within the sphere. It will also argue that an important part of this delegitimization is the undermining of consent as envisioned in international law.

To construct these arguments, this chapter will proceed first by examining the nature of the ITU’s power to make law and regulation concerning international telecommunications. This section will give a historical overview of the ITU and then investigate the most recent effort by states to extend the ITU’s authority over the Internet. The next section will examine the development of global multistakeholder governance through an examination of the Internet Engineering Task Force (IETF) and the Internet Corporation for Assigned Names and Numbers (ICANN). The final section will examine the trend of corporate intermediaries in Cyberspace and their capacity as governance bodies.

Harmful Interference

The need to facilitate interconnection among states through telecommunication is as old as the telegraph, and the ITU dates to this period having first been established as the International Telegraph Union.[5] The utility of telegraph technology was immediately apparent, but states wanted to ensure that they controlled the technology as it crossed their borders. As a result, the ITU began as an organization that developed standards and rules for cross-border telecommunications, which allowed for interconnection among countries. This regime gave states primary control over telecommunications at the nodes where physical infrastructure crossed their borders. Today, the mission of the ITU is “facilitating peaceful relations, international cooperation among peoples and economic and social development by means of efficient telecommunications services.”[6]

This strategy worked well with lined communications such as telegraph and telephone, but broadcast brought on new challenges, because radio waves do not conform to state borders. There was, as a result, much debate in the international community on the nature of international responsibility for content crossing borders on radio waves. This can be seen in the Soviet complaints about radio propaganda during the Cold War[7] as well as in the UN General Assembly’s controversial adoption of the Direct Broadcasting Principles.[8] The ITU again avoided coming into contact with the issue of content by adopting a policy of coordinating international usage of electromagnetic frequencies by nations so as to prevent harmful interference between broadcasts.[9] More recently, there was a movement in the ITU to give developing states more access to international telecommunications development resources.[10] Of course, in the realm of international relations a state’s disbursement of aid is highly attenuated by a state’s political goals. The ITU again avoided questions of content by developing a division that advocated for such development, but left the legal substance to bilateral or regional agreements.[11] Held argues that technical international organizations such as the ITU “have been sharply delimited” in order to make them “politically unexceptionable.”[12] In the case of the ITU, its actions have been delimited to facilitating interconnection and coordinating usage.

Two key observations need to be made here. First, the ITU is a body made up of states as the basic unit of the body politic,[13] and the ITUs legitimacy, like that of other international organizations, springs from “state sovereignty.”[14] Votes in the ITU are allocated one to one, and while non-governmental actors are given access to participate in deliberations,[15] the state is the primary power holder in the ITU forum for international coordination, meaning that the rules that it adopts are manifested through the “filter of domestic structures and domestic norms.”[16] The ITU is a treaty-based organization, and as such it springs from within the logic of international governance, which reifies international conceptualization of the world.

Second, the ITU makes international law and policy. The ITU’s outputs consist of a variety of law and policy documents. As the international body that adopts the rules of international telecommunication, the ITU adopts resolutions that chart its own course in addressing the issues raised by telecommunication technologies. More importantly, the ITU meets regularly to update the rules that make up the Radio Regulations. The Radio Regulations is a treaty of technical standards that is negotiated among members and sets out the regime for coordination of international radiotelecommunication. The Radio Regulations create international obligations that apply to states, not telecommunication providers, directly. In effect, the ITU depends on the member states to make its rules operable through national regulation binding upon domestic actors. Regulation as a result relies on consent of the state parties to the adopted rules.

As an international lawmaking body with the competency and a proven record for coordinating international telecommunication activities, it would seem that the ITU would be well situated to extend its hand of governance over the Internet, which fits easily within the definition of international telecommunication, which is “[a]ny transmission, emission or reception of signs, signals, writings, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems.”[17] The technology involved is exactly the type of technology that the ITU was developed to coordinate across borders, but the ITU has been unable to exert direct control within the sphere of Cyberspace. It has, instead, taken on a role more akin to a stakeholder within Cyberspace governance. This is in part due to the historical conditions that led to the governance of information technologies being “dominated” by other organizations.[18]

This inability of the ITU to effectively extend its competency can be seen in the results of its Plenipotentiary Conference held in Busan, Korea in 2014 (PP-14). This meeting was preluded by media chatter warning of an ITU takeover over the Internet, which taps into an established “media narrative . . . about a possible Internet governance takeover” by the UN.[19] These headlines were prompted by the position being taken by the Russian Federation and other states that the ITU should have more control over the Internet.[20] The position of this bloc of states was widely interpreted as a threat to a free and open Internet. For instance, the U.S. characterized the proposals as mechanisms “that could have provided a mandate for the ITU in surveillance or privacy issues; inhibited the free flow of data; regulated Internet content and service companies; undermined the multistakeholder process; or called on the ITU to develop international regulations on these issues.”[21] There was more to this than just rote suspicion of the UN. As a product of international law, the ITU would need to extend the logic of international governance to Cyberspace to effectively regulate its mechanisms. This would mean adopting measures that allow for cross border interconnection while avoiding embroiling itself into disputes over the content of communications. This would give states the ability to adopt, through the ITU forum, technical standards that facilitate national content controls. Such standards would increase state power to censor, monitor, or treat with deference communications entering their borders.

In Busan, the moves to extend the ITU’s competency were defeated through the work of the U.S., which “built a broad consensus that led to success on Internet and cybersecurity issues keeping the ITU’s work focused on its current mandate.”[22] These efforts served “to mitigate and remove proposed language from resolutions that would have improperly expanded the scope of ITU.”[23] The results of the negotiations are a handful of nonbinding resolutions that resemble policy statements.[24] So for instance, Resolution 2 calls for a global framework to exchange information on such technologies to “support the harmonious development of telecommunication services.”[25] More strikingly, Resolution 101 gives direct recognition to IGCs by “requesting” the Standardization Sector to continue “collaborative activities on IP-based networks with ISOC/IETF and other relevant recognized organizations.”[26] The ITU further adopted Resolution 102, which states that “management of the Internet is a subject of valid international interest and must flow from full international and multistakeholder cooperation.”[27] This resolution seemingly cedes power to an ambiguously defined “multistakeholder” system, which will be argued below exists outside the bounds of international legal geography.

Trading off coordination for content is, of course, the status quo of international telecommunications regulation, which raises the question of why Internet technology has resisted the encroachment of international law from the exact international body charged with regulating that type of technology. A simple answer would be that states simply do not want to extend international law to govern Cyberspace, and to some extent this is true. However, it seems odd that Cyberspace has such a prominent role in social life at the global level, and that international law remains largely silent on the matter. To be clear, it is not that states are disinterested in the Internet – it is clearly an item on the agenda of the international community. Yet, it is one that international governance is at a loss to comprehensively address. A more satisfying answer can be found in the geography of Cyberspace that exists outside the logic of international geography. Critically, the legal geography of Cyberspace is built around code which is both content and medium. As a result, the “sharply delimited” functions of the ITU are ill equipped to expand to control a medium that is concurrently content. The state is not deprived of jurisdiction completely, as should be obvious from existing domestic laws, but those laws can only extend to the layers of Cyberspace that intersect national space. As a result, international governance has lost significant control over transnational communication, which no longer conforms to the bordered assumptions that underlie international governance.

This does not mean that Cyberspace is without authority. It means that the state becomes one of many stakeholders in a multistakeholder legal geography. The next two sections will investigate the trend of global multistakeholder governance by first examining the technical bodies that govern the logical layer of the Internet and then through analysis of corporate and commercial interests that extend governance over the Internet. These sections together reveal a........

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