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Internet Governance: A Developing Nation's Call for Administrative Legal Reform

  • Surya Mani Tripathi, Anshu Pratap Singh and Dipa Dube

Abstract

The internet has emerged as a reservoir of information and has pushed the world to evolve into a global village. Increased communication across political, social and economic barriers has created a virtual society of its own. This networked society poses considerable challenges for Internet Governance. The Internet Corporation for Assigned Names and Numbers (ICANN) is the institution responsible for the internet management. ICANN has been at the center of the debates over global governance of the internet. Key concerns raised in these debates involve the legitimacy of institutions as well as the participation of developed and developing nations in Internet governance.

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1 See, Lessig, Lawrence, (1999), The Code of Cyberspace at http://www.lessig.org/content/standard/0,1902,7802,00.html (last visited on 10 Sept 2009).

2 See, Maitland, Frederic William (1898), A Prologue to a History of English Law, 14 L. Quarterly Rev. 13 in Katsh, Ethan, (1993), 38 Vill. L. Rev. 403,

3 Marsden, Christopher T. (2001), Cyberlaw……Global Information Society, L. Rev. of Mich. St. Univ.

4 See, Krisch, , Nico and Benedict Kingsbury, (2006), Introduction: Global Governanc…‥Legal Order, 17 Eur. J.l of Int.l L. 1–13; see also Calabrese, A. (1999) Communication and the end of sovereignty? 4 Info - The J.l of Pol., reg. and str. for telecom., 313326.

5 See, Galanter, Marc (1985), The Legal Malaise: Or, Justice Observed, 19 L. Soc. Rev. 537545.

6 Zicai, Tang Xiongjian, Liang, (2005), Global Internet Governance: Perspectives and Analysis, China Communications, at http://www.chinacic.org.cn/english/digital%201ibrary/200502/5.pdf (last visited on 12 Sept 2009).

7 In effect, governance has been used in the context of: the minimal state; Corporate Governance; the new public management; good governance. See Rhodes, R.A.W. (1996), “The new governance: governing without government”, 44 Political Studies 4.

8 Governance, in other words, is a more encompassing phenomenon than government. It embraces governmental institutions, but it also subsumes informal, non-governmental mechanisms whereby those persons and organizations within its purview move ahead, satisfy their needs, and fulfil their wants. See Rosenau, James and Czempiel, Ernst-Otto (eds.) (1992), Governance Without Government: Order and Change in World Politics. Cambridge: Cambridge University Press.

9 Such as the Domain Name System, IP numbers, and root servers.

10 See WSIS (World Summit on the Information Society) Executive Secretariat (Ed.) “Tunis Agenda for the Information Society.” Document WSIS05/TUNIS/DOC/6(Rev.1)-E. Geneva, ITU, 2005.

11 Tunis Agenda for The Information Society (2005) at http://www.itu.int/wsis/docs2/tunis/off/6rev1.html (last visited on 8 Sept 2009); see also Tunis Agenda for the Information Society (2005) at http://www.ngocongo.org/ngomeet/WSIS/TunisAgenda.htm (last visited on 8 Sept 2009).

12 See Krisch, Nico and Kingsbury, Benedict, (2006), Introduction: Global Governance and Global Administrative Law in the International Legal Order. 17 Eur. J. Int. L. 1, 113.

13 The US government sponsored the development of the Defence Advanced Research Projects Agency (DARPANet), a resilient communication facility designed to survive a nuclear attack.

14 Regulatory interference by the USA was not welcomed by many of the Internet Community. The extent of opposition is clear from the following statement of Jon Perry Barlow.

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks……You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear…‥ Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here. See, Barlow, John Perry, A Declaration of the Independence of Cyberspace (1996), at http://homes.eff.org/~barlow/DeclarationFinal.html

See also, Kurbalija, Jovan “Internet Governance and International Law” in Drake, William J. (Ed.) (2005), Reforming Internet Governance: Perspectives for the Working Group on Internet Governance. New York: United Nations Information and Communication Technologies Task Force.

15 ICANN is incorporated under the laws of the State of California as a non-profit and public benefits corporation. ICANN is free to conduct its business as it sees fit. Because ICANN controls a technical bottleneck (the domain name and IP address systems), it has attained the level of international governor of online contents.

16 Under its Memorandum of Understanding with the Department of Commerce, ICANN has responsibilities for the policies and regulations of the Internet domain name and IP address infrastructure. See the Memorandum of Understanding (MOU) between ICANN and the U.S. Department of Commerce, in effect since Nov. 25, 1998. at http://www.icann.org/general/icann-mou-25nov98.

17 Raboy, Marc and Shtern, Jeremy, (2005), “The Internet as a global public good: Towards a Canadian position on internet governance for WSIS phase II”. In Dugré, Pauline (ed). Paving the Road to Tunis – WSIS II. Paver la voie de Tunis-SMSI II. Ottawa: Canadian Commission for UNESCO.

18 There are five major types of multi-stakeholder global administration:

  1. 1

    1 The first type concerns administration by formal international organizations, such as the UN Security Council and its committees, the UNHCR, the WHO, the Financial Action Task Force, and the World Bank's “good governance” standards as conditions for financial aid.

  2. 2

    2 The second type embraces administration by transnational networks and coordination, where formal structures are replaced by informal cooperation among state regulators, with or without a treaty framework. Although non-binding, these agreements can be very effective. Examples include the Basel Committee, which gathers heads of central banks without a treaty, and WTO law which requires “horizontal cooperation” by validating regulations of one member state in all others.

  3. 3

    3 The third type is related to distributed administration conducted by national regulators under treaty, network, or other cooperative regimes, in which domestic regulators make decisions of global concern. An example is found in the exercise of extraterritorial regulatory jurisdiction. Such regulation is sometimes restrained by internationally established limitations.

  4. 4

    4 The fourth type of global multistakeholder administration is slightly more complicated than the first three. Much variation exists in the nature of bodies that make up the fourth category, hybrid intergovernmental-private administration. An example is the Codex Alimentarius Commission, which adopts standards on food safety through NGO - governmental cooperation, and produces Sanitary and Phytosanitary Measures (SPS) Agreement standards recognized under WTO law. ICANN can also be considered under this category.

  5. 5

    5 The fifth type is administration by private institutions with regulatory functions. An example is the International Standardization Organization (ISO) which has developed over 13,000 standards that harmonize product and process rules around the world.

19 Kingsbury, Benedict Krisch, Nico and Stewart, Richard, (2005), “The Emergence of Global Administrative Law” 68 LAW AND CONTEMPORARY PROBLEMS, 1561.

20 Accountability refers to the obligation to demonstrate and take responsibility for performance in light of agreed expectations, and answers the question: Who is responsible to whom and for what? See Fitzpatrick, Tom (2000), Horizontal Management: Trends in Governance and Accountability. Canadian Centre for Management Development Ottawa: Treasury Board of Canada.

21 Legitimacy differs with the concept of accountability as instead of referring to the identity of authorities and the relationships between them, legitimacy focuses on the nature of the particular social or political arrangement. Legal governance derives legitimacy from sovereignty, or the constitution of a state, while the legitimacy in private governance relies on consent.

22 See, Klein, Hans (2004), “Legitimacy and Global Internet Governance.” Response Paper 3. Social Science Research Council (SSRC) Information Technology & International Cooperation Program. Research Network of ICT Governance and Transnational Civil Society. SSRC Website at www.ssrc.org/programs/itic/publications/knowledge_report/memos/kleinmemo3.pdf (last visited on 18 Feb 2009).

23 See, Bylaws for Internet Corporation for Assigned Names and Numbers at http://www.icann.org/en/general/bylaws.htm (last visited on 10 Sept 2009)., specially Article II and Article IV.

24 Kathryn, Kleiman (2003), Internet Governance: A View from the Trenches, ACM's Internet Governance Project.

25 In ICANN there was a double representation for commercial users and a single representation for non-commercial users. In the Domain Name Supporting Organization, the commercial community was given the Business Constituency and the Intellectual Property Constituency. The non-commercial community received the Non-commercial Domain Name Holders Constituency. Further, the commercial constituency was dominated by large multinational companies belonging to developed nations; in fact there was no representation from developing world. Traditionally North American representatives played the main leadership role in the ICANN's Constituencies.

26 See also, Butt, Danny(ed.), (2005), Internet Governance: Asia-Pacific Perspectives, Elsevier, New Delhi.

27 The Internet could evolve into a global commons where people all over the world are free to communicate and interact and to distribute and consume an endless variety of literature and media.

28 See also, Wilske, Stephan and Schiller, Teresa, (1997–1998), International Jurisdiction in Cyberspace: Which States May Regulate the Internet? 50 Fed. Comm. L.J. 117.

29 See also, Calabrese, A. (1999), Communication and the end of sovereignty? 1 Info: The journal of policy, regulation and strategy for telecommunications 4,313–326.

30 Mentioned by Benkler (2000) and discussed in Kapur, Akash, (2005), Internet Governance: A Primer. Elsevier: UNDP-APDIP.

31 Pollution is the generalized term used to refer to a variety of harmful and illegal forms of content that clog (or pollute) the Internet. Although the best known examples of pollution are probably spam (unsolicited email) and viruses, the term also encompasses spyware, phishing attacks (in which an email or other message solicits and misuses sensitive information, e.g., bank account numbers), and pornography and other harmful content.

32 Cybercrime is more negative form of pollution. Cybercrime encompasses a number of actions, notably financial fraud, online pornography, hacking, and security attacks such as the injection of viruses, worms and Trojan Horses, the conduct of denial of service attacks, and a variety of other damaging practices. In addition, terrorism that is facilitated by the Internet has emerged as a major concern in recent years.

33 IPRs are the legal rights granted by the state to exclude others for exploitation of protected work without prior consent.

34 DNS allows users to use memorable alphanumeric names to identify network services such as the World Wide Web and email servers. It is a system that maps names (e.g., www.iitkgp.ac.in) to a string of four numbers separated by periods called IP addresses (e.g., 165.65.35.38). Examples of top-level domain names: .arpa, .com, .net, .org, .int, .edu, .gov and .mil.

35 IP addresses are composed of sets of four numbers (ranging from 0 to 255) separated by periods – this is just a representation of a 32-bit number that expresses an IP address in Internet Protocol version 4 (IPv4). In fact, every device on the network requires a number, and numbering decisions for IP addresses as well as for other devices are critical to the smooth functioning of the Internet.

36 Such as, E-commerce, Taxation, Revenue Sharing, Internet Exchange Points, Cyber-security and data protection, Internet & International Telecommunication Regulations.

37 Examples include: Regional root servers, Management of country code Top Level Domains (ccTLDs) and generic Top Level Domains (gTLDs),Private vs. public legal instruments.

38 Such as financing infrastructure, Mobile broadband, ubiquitous networks, Internet Protocol, Migration to IP-based networks, Universal access, Internet content regulation)

39 For example, financing services and applications, National E-strategies, E-education, E-government, Network-based applications, Knowledge repositories, Consumer Protection.

40 There are approximately 1 billion Internet users worldwide, mainly concentrated in the developed world. Whereas 62% of the UK population have internet access, this figure is as low as 3.6% for Africa. This disparity in access has been termed the ‘Digital Divide'. See Postnote February 2007 Number 279 “Internet governance”at www.parliament.uk/parliamentaryoffices-/post/pubs2007.cfm

41 Kummer, Markus (2007), Internet Governance and the need for an inclusive multi-stakeholder dialogue, NSF/OECD Workshop on Social & Economic Factors Shaping the Future of The Internet, Washington, 31 January 2007.

42 It has been argued many times that developing countries are not adequately represented in most governance fora and. When they are represented, they often do not have adequate technical capacity or resources to participate on equal terms. Further ICANN has the potential to turn into the first world regulatory body. By beginning to associate top level domains with content usage, they are putting themselves into the position of being the defacto arbiter of online content.

43 The concern of developing countries was discussed at UN Global Forum on Internet Governance. See, Global Internet Governance System Is Working But Needs To Be More Inclusive, UN Forum On Internet Governance, UN Press Release PI/1568, 26/03/2004 at http://www.un.org/News/Press/docs/2004-/pi1568.doc.htm (last visited on 20 Sept 2009).

44 See also, Upton, Oren K. (2003), Asserting National Sovereignty in Cyberspace: The Case for Internet Border Inspection, Master's thesis.

45 See, Maclean, Donet al. (2003), “Louder Voices: Strengthening Developing Country Participation in International ICT Decision-Making,” Commonwealth Telecommunications Organization & Panos, London.

46 Guangrong, Ru (1998), The Negative Impact of the Internet and Its Solutions, 121 The Chinese Defence Science and Technology Information Monthly 5.

* The present paper is modified version of a paper presented at the International Conference of Jurists on Terrorism, Rule of Law & Human Rights, December 2008, held at New Delhi, India; organized by International Council of Jurists, All India Bar Association and Indian Council of Jurists, India.

** , Law (LL.B.) student at Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology (IIT) Kharagpur, West Bengal-721302, India; Corresponding author.

*** , Law (LL.B.) student at Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology (IIT) Kharagpur, West Bengal-721302, India.

**** , Assistant Professor of Law at Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology (IIT) Kharagpur, West Bengal-721302, India.

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