Cyberspace Governance

1
Cyberspace Governance

• Erich Schweighofer
• Universität Wien
• Arbeitsgruppe Rechtsinformatik
• Institut für Völkerrecht und Internationale
  Beziehungen
• On leave, at present working for the European
  Commission in Brussels. The expressed views are
  those of the author.

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Outline

• Concept of cyberspace governance
• No cyberspace regulation insufficient regulatory
  intervention, regulatory dissens and sometimes
  also chaos in some areas (e.g. spam, taxes,
  pornography, games, data protection)
• Cyberspace governance providers
• Typology States, Public and Private
  International Organisations, Transnational
  Corporations, Citizens
• Methods and efficiency of regulation
• Conclusions

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Definition of Governance

• UN Commission on Global Governance, Our Global
  Neighbourhood
• The Report of the Commission on Global Governance
  (1995) chapter 1
• Governance is the sum of the many ways
  individuals and institutions, public and private,
  manage their common affairs. It is a continuing
  process through which conflicting or diverse
  interests may be accommodated and co-operative
  action may be taken. It includes formal
  institutions and regimes empowered to enforce
  compliance, as well as informal arrangements that
  people and institutions either have agreed to or
  perceive to be in their interest.
• Aim rule of law as a efficient way of risk
  reduction by providing legal security

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Definitions of Cyberspace (1)

• Gibson
• Cyberspace is a metaphor that allows us to grasp
  this place where since about the time of the
  second world war we've increasingly done so many
  of the things that we think of as civilization.
  Cyberspace is where we do our banking, it's
  actually where the bank keeps your money these
  days because it's all direct electronic transfer.
  It's where the stock market actually takes place,
  it doesn't occur so much any more on the floor of
  the exchange but in the electronic communication
  between the worlds stock-exchanges. So I think
  that since so much of what we do is happening
  digitally and electronically, it's useful to have
  an expression that allows that all to be part of
  the territory. I think it makes it easier for us
  to visualize what we're doing with this stuff.
• Metaphor for a new space in which through
  communication and data transfer certain actions
  are set

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Definitions of Cyberspace (2)

• US Supreme Court, United States et al v American
  Civil Liberties Union et al (1997)
• a unique and wholly new medium of worldwide
  communication. Taken together, these tools
  email, mailing list servers, newsgroups, chat
  rooms, World Wide Web constitute a unique new
  medium - known to its users as "cyberspace" -
  located in no particular geographical location
  but available to anyone, anywhere in the world,
  with access to the Internet.
• New space with special regulation problems, in
  particular dislocation

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Definitions of Cyberspace (3)

• Council of Europe, Cybercrime Convention (2001)
• By connecting to communication and
  information services users create a kind of
  COMMON SPACE, called "cyber-space", which is used
  for legitimate purposes but may also be the
  subject of misuse .
• Grewlich (1999)
• invisible, intangible world of electronic
  information and processes stored at multiple
  interconnected sites, with controlled access and
  manifold possibilities for interaction
• Quite useful start for a definition

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Definitions of Cyberspace (4)

• Next try (my own)
• Particularities
• New space for human activities, e.g.
  communications, leisure (games, pornography),
  trading (e-commerce), participation
  (e-democracy), administration (e-government),
  working (?)
• Invisible, intangible, non-territorial (but IPv6
  geographic-based unicast addresses), worldwide
• Distance does not matter
• Strong interaction with real world (people still
  live in real space are always subject to
  enforcement of state of residence)

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Definitions of Cyberspace (5)

• Territorial approach not sufficient any more
• No new territory (e.g. declaration of Barlow,
  cyberspace jurisdiction à la Johnson/Post)
• Too strong interaction with real world
• Persons may be very often in this space for some
  time, but they still live in a real physical
  world.
• They are not away (concept conflict of laws) and
  have no relation any more with a particular
  country!

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Definitions of Cyberspace (6)

• Regulation providers
• No single regulator so far, but many regulators
• Multilevel regulation (Engel)
• Sometimes a chaos resulting from various
  regulation endeavours (e.g. (child) pornography,
  data protection, lotteries, spam etc.)
• New regulation methods
• New challenge for risk reduction (e.g. providing
  legal security) as main aim of legal systems

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Cyberspace regulation (1)

• Options of regulation
• Cyberspace jurisdiction? (Johnson/Post)
• No acceptance
• Territorial jurisdiction?
• Westphalian system realist approach
• Problem of limited reach of the authorities of
  the state
• Personal jurisdiction?
• Liberal system (Slaughter) citizens have
  sovereignty can give it to various organisations
  like state, NGO, or transnational corporations
• Option for states, sometimes used but in general
  limited because of interference with territorial
  jurisdiction
• New personal communities with self-regulation
  (e.g. IETF, W3C, ICANN, information cities ACM
  Feb04 etc.)

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Cyberspace regulation (2)

• Developing, but quite limited, focused on
  technical issues (IETF), ICANN in this respect
  quite unsuccessful
• Requires some support by territorial state
• Technical regulation? (software code)
• Fascination option with quite high efficiency
• Lack of regulatory control
• Requires some support (and correction) by
  territorial state
• Extraterritorial (unilateral) regulation of the
  territorial state (or supranational organisation)
• Best option for uniform application of laws so
  far (e.g. USA, EU)
• International law
• Public international law
• Limited use so far

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Cyberspace regulation (3)

• Conflict of laws (private international law,
  international penal law, international
  administrative law)
• In the very end in case of lack of good rules
  dispute settlement provider
• Tentative solution for unsolved balancing of
  realist vs. liberal approach of regulation
• Present status multilevel governance of
  cyberspace by various regulation agents
• States in (close) co-operation with International
  Organisations, NGOs, transnational corporations,
  citizens etc.
• Problems chaos (e.g. no efficient regulation),
  dissens, extraterritorial regulation,
  self-regulation with lack of accountability

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Cyberspace governance providers (1)

• Idea of regulation agents (Regulierungsagenten)
  Kirchner, Lutterbeck
• End of strict hierarchies (governance by
  government)
• Competition of different regulation systems
  (governance with government)
• Cyberspace governance providers
• Competition of different regulation providers on
  activities in cyberspace
• Transnational order (Jessups) with new forms of
  regulation
• Legal systems, regimes, networks, self-regulation
• Exit option of citizens, companies and
  communities
• Governance by recognition, limited enforcement by
  territorial state and cyberspace
• Johnson/Crawford/Palfrey Jr. (2004) The Peer
  Production of Governance

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Cyberspace governance providers (2)

• States
• Territorial and personal regulation
• Stronger role for self-regulation
• Regulative restraint (Grewlich 1999)
• Forever?
• Extraterritorial (unilateral) regulation
• e.g. USA, EU
• Principles of jurisdiction in public
  international law
• Territoriality/non-intervention
• Activity, effect, seat of business, place of
  residence, birth
• Personality
• Extraterritorial jurisdiction
• Effect

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Cyberspace governance providers (3)

• New principle of targeting
• Definition?, e.g. EU Regulation 44/2001 on
  jurisdiction, recognition and enforcement of
  judgements in civil and commercial matters
• Broad principles, fine-tuned rules in national
  legal orders (international private,
  administrative and penal law) extraordinary
  strong role for these often neglected areas of
  law
• Conflict of laws
• Applicable law
• Public law national law
• Private law Rome Convention on the law
  applicable to contractual obligations, UN
  Convention on the Sale of Goods, national law

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Cyberspace governance providers (4)

• parties are free to choose
• No clause State to which the contract has the
  closest connection
• Presumption State of the party performing the
  characteristic obligation)
• Consumer contracts law of the consumer must be
  applied if either
• Conclusion of contract because of a specific
  invitation to the consumer or by advertising in
  the consumers member State
• Seller received the consumers order in the
  consumers member State
• WWW-indicators used language, ZIP-Codes,
  contract details
• Jurisdiction
• Public law national law
• Private law Brussels and Lugano Conventions on
  Jurisdiction and Enforcement of Judgements in
  Civil and Commercial Matters since 1 March 2002
  replaced by Council Regulation 44/2001

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Cyberspace governance providers (5)

• B2B
• Jurisdiction chosen by parties
• in absence of agreement courts of the
  defendants domicile
• B2C
• consumer can sue in the State where the business
  is established or in the State of his own
  domicile
• Merchant can only sue in the consumers home
  State
• Definition of consumer contract
• Contracts with a consumer for
• a repayable in instalments or
• the sale of goods on instalment credit terms or
• contracts where a specific invitation or
  advertising was made in the consumers state of
  domicile and the consumer took the steps to
  conclude the contract in his State of domicile

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Cyberspace governance providers (6)

• International Governmental Organisation (IGO)
  community of states and International
  Non-Governmental Organisation (NGO) community of
  citizens (economic or non-economic
• International co-operation of states but also
  NGOs, transnational corporations (e.g. in ITU)
  and citizens (e.g. ICANN)
• Legal basis international treaty or private
  contract
• Co-operation OCED, Council of Europe, UNO and
  special agencies, ITU, UNCITRAL

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Cyberspace governance providers (7)

• Regulation ITU, WIPO, WTO, OCED, Council of
  Europe, Hague Conference on Private International
  Law, UNCITRAL, IETF, ICANN
• Supranational regulation EU/EEA
  (telecommunications, internet, data protection,
  intellectual property law, e-commerce law etc)
• Dispute settlement ICANN domain names, credit
  card charge-backs, on-line dispute settlement
• Enforcement ICANN domain names, credit card
  charge-backs

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Cyberspace governance providers (8)

• Transnational Corporations (TNCs) (Multis)
• Enormous economic power and strong exit option
• Sovereignty at bay (old idea discussed in 1972
  et seq.)
• Market community of company with its customers
• Rule making (contract or unilateral obligation
  data protection code of DaimlerChrysler),
  dispute settlement (free choice), weak rule
  enforcement
• Credit card charge-backs
• Citizens
• Own role participation in decision making,
  dispute settlement
• (Very often) mediated by NGOs or transnational
  corporations (accumulated buying power)
• Victim (but also beneficiary) of weak rule
  enforcement

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Conclusions

• Cyberspace is an enormous challenge for
  governance
• Solution of territory for dissens does not fit
  very well in cyberspace
• Cyberspace jurisdiction will never be (?)
• Multilevel governance
• Various cyberspace regulation providers
• States, international organisations,
  transnational corporations, citizens
• State remains most important regulator