The Internet is a global network of computer networks linked by various information and telecommunication infrastructures and technologies. The Internet and the technologies which transmit its rivers of information around the globe are conceptualized and regulated by all countries of the world within the framework of their political, economic, social, and cultural systems. Each country has an attitude toward the Internet, especially those parts of the Internet within its national territory. This multiplicity of regulatory approaches to the Internet essentially transforms cyberspace into a series of interconnected jurisdictions where each country attempts to apply its rules, regulations, and culture on the networks within its territorial jurisdiction. Internet law and regulation is further complicated by the convergence of several media – information technology, telecommunications, print media, sound, still images, and motion pictures – which are regulated differently by different countries.
History of The Internet
The Internet grew out of the communications network survivability concerns of the United States Department of Defense during the Cold War era. In effect, after the Soviet Union launched the first artificial satellite into orbit in 1957, the United States launched the Advanced Research Projects Agency (ARPA) in 1958 to compete with the Soviet Union in space technology. In 1969 ARPA developed ARPANET, a computer network that linked the Pentagon’s global military resources through a redundant “system of systems,” or network of computer networks, exchanging information in self-contained packets. This new technology increased the speed of digital transmissions by several orders of magnitude. As part of America’s command, control, and communications network, ARPANET was designed to be redundant and capable of surviving a Soviet nuclear strike.
No other communication medium has had such an explosive growth in such a relatively short span of time. The lightning speed with which the Internet has grown and diffused around the world is due in part to the invention, in 1990, of the world wide web, at the European Center for Nuclear Research (CERN) in Geneva, Switzerland, and its release, free of charge, to the computer science community. The fall of the Berlin Wall in 1989, and the end of the Cold War, led to the transformation of the Internet into a global, technologically converged, multi-communication platform. The American government contracted the running of the Internet first to the Internet Assigned Numbers Authority (IANA), and eventually to the Internet Corporation for Assigned Names and Numbers (ICANN), a nonprofit corporation formed by stakeholders of the Internet community. ICANN handles Internet protocol address space allocation, protocol parameter assignment, and domain name and root server system management. Thus, governance of the infrastructure and protocols of the Internet does not fall under the ambit of international law. Indeed, the development of the architecture of the Internet, and control of Internet evolution and operation lies with the Internet Engineering Task Force (IETF), an international community of network designers, operators, vendors, and researchers.
Internet Law and Policy Typology
Since the Internet is a global multi-communication space on which information and communication technologies converge, its regulation is multilayered. The basic unit of Internet regulation is code, the programming software or logic that makes the Internet function. In his highly acclaimed book, Code and other laws of cyberspace, Lawrence Lessig conceptualized Internet regulation as space dominated by corporate commercial technologies and the logic of their underlying computer codes, operating within the framework of the rule of law. Indeed, by creating protocols such as those designed to protect children from harmful content on the Internet and by setting standards for anything from HTML to peerto-peer music exchange, the Internet community clearly regulates the Internet.
Additionally, through code, information and communication technologies are used to regulate the behavior of Internet users on a global scale, in accordance with the values, ideals, and ethics of manufacturers, controllers, and hardware and software designers. Additionally, regulators around the world employ architectural, software, and hardware solutions to address cyber-crime, network security, reliability, privacy, and intellectual property issues.
Since the Internet became a global multi-communication medium in the 1990s, countries all over the world have enacted laws aimed at regulating the segments of the Internet within their jurisdictions, or at least bringing those parts of the network within the ambit of their systems and legal jurisdictions. The result is a range of Internet regulatory models at the international and national levels.
Multilateral or International Regulations
International regulation of the Internet consists of a “basket” of conventions, United Nations resolutions, declarations, and plans of action. International regulation of the Internet covers electronic commerce and electronic signatures, child pornography, and intellectual property.
The linkage of information and communication technologies led to the creation of a global information economy. According to the Global Information Infrastructure Commission, the infrastructure of the knowledge economy was set in place by a series of agreements: the International Telecommunication Union (ITU) World Telecommunications Policy Forum of 1996, which reached agreements on satellite development and interconnection; the World Trade Organization (WTO) Ministerial Meeting of 1996, which committed countries to eliminate tariffs on information technology products; and the 1997 WTO Agreement on Basic Telecommunications Services, which called on nations to liberalize their telecommunications markets.
Additionally, electronic commerce was officially endorsed by the United Nations, and globalized within the framework of the United Nations Commission on International Trade Law (UNCITRAL). The Commission set out to bring the multibillion-dollar global electronic commerce under international trade law through its Model Law on Electronic Commerce, and its Model Law on Electronic Signatures. UNCITRAL conceptualized its model laws as tools for harmonizing the disparate trade laws that obtain around the globe in order to facilitate electronic commerce.
Areas of Internet content that are covered by international law include child pornography, data protection, and intellectual property. The legal basis for the suppression of child pornography on the Internet is the United Nations Convention on the Rights of the Child.
As child pornography became prevalent on the Internet, the UN General Assembly adopted the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. The United Nations called for worldwide criminalization of the production, distribution, exportation, transmission, importation, and intentional possession and advertising of child pornography. Additionally, the International Labour Organization (ILO) fights against child pornography on the Internet under the “Worst Forms of Labour Convention” of 1999.
Intellectual Property and Domain Names
One of the most significant multilateral Internet agreements was carried out within the framework of the World Intellectual Property Organization (WIPO), an organization with a membership of 171 countries. WIPO’s Internet Domain Name Process involves holding extensive international consultations with a view to making recommendations on the management of Internet domain names and addresses worldwide. The WIPO process also involves the settlement of disputes arising from intellectual property issues associated with domain names. The goal of the WIPO process is to apply multilaterally agreed standards of intellectual property protection to the Internet.
The WIPO Copyright Treaty and the WIPO Performances and Phonographs Treaty of 1996 made international copyright law applicable to the Internet and laid the groundwork for a multilateral approach to the resolution of intellectual property disputes. One of the most important provisions of the treaty is the criminalization of measures taken by hackers and other unauthorized persons, to circumvent digital anti-piracy counter-measures embedded by authors and copyright holders in intellectual property ranging from software to compact discs. Furthermore, the treaty calls on signatory countries to take legal actions against those who knowingly remove or alter electronic rights management information. To underscore the importance the United States attached to the WIPO treaties, the American Congress passed the Digital Millennium Copyright Act of 1998 to implement them.
The Neo-Mercantilist Model
The American political and economic system is premised on the notion that the United States is a marketplace of ideas. As such, except in the narrowest of circumstances, the government may not regulate speech on the basis of its content. These principles are the foundation of the country’s neo-mercantilist Internet law regime. Congress has funded supercomputers and networks in the United States based on the premise that computer infrastructures were similar to the American interstate highway system, which provided the infrastructure for transportation and communication but allowed the free market to determine the cities that would benefit the most from the system.
In 1997, the Clinton–Gore administration offered the world a framework for the expansion and regulation of electronic commerce. The administration conceptualized the Internet as a global capitalist marketplace, and appealed to governments to assume a minimalist regulatory posture toward electronic commerce. The Clinton–Gore framework favored self-government, decentralization, bottom-up governance, private-sector networks, public–private sector partnerships, and international agreements as values that should guide Internet regulation. The Clinton–Gore framework was aimed at creating a seamless global market economy with a fluid exchange of finance, goods, services, and information. It essentially globalized America’s libertarian principles: the marketplace of ideas, laissez-faire economics, free trade, and the free flow of information, goods, and services. The international Internet law regime promoted by the United Nations and the WTO adhere to these principles.
Child Pornography Under American Internet Law
The only exception to this global free market economy is child pornography. With the transformation of the Internet from an instrument of military and research communication to a general-purpose educational, cultural, social, and commercial platform, the medium soon became a magnet for pornography of all kinds, including child pornography. The accessibility of online adult pornography to children, as well as media stories of predators who sought unsuspecting children on the Internet, led to passage of the Communications Decency Act of 1996 in the United States.
This act was challenged in court, and in the ground-breaking case Reno v. ACLU, the Supreme Court of the United States ruled that the Internet has First Amendment protection comparable to that enjoyed by the print media. As a result, pornography involving adults has constitutional protection. However, obscenity (material that presents human sexual and toilet functions in a highly offensive manner without any redeeming value to society) is not protected. Some researchers claim that the United States Supreme Court’s decision in Reno v. ACLU essentially globalized the First Amendment. The Supreme Court of the United States has also held that a blanket ban on computergenerated images of children or adults who appear to look like children indulging in sexual activities is unconstitutional.
Regulation of Electronic Signatures
Transformation of the Internet into a virtual multi-marketplace created a need for software and infrastructure that ensure the security, reliability, privacy, and authentication of online transactions. The most common method of Internet security and authentication is the electronic signature, which can range from typed email signatures to digital signatures (a unique string of numbers or characters, or a combination of both, that are linked to another series of numbers generated through complex mathematical algorithms or operations that are made possible by encryption technology).
In order to ensure the confidentiality, reliability, and security of Internet identification systems, the United States enacted the Electronic Signatures in Global and National Commerce, or E-Sign, Act of 2000. The Act was designed to promote global electronic commerce. The E-sign Act does not oblige unwilling participants to accept electronic signatures. However, it stipulates that electronic signatures, contracts, or records may not be denied legal effect, validity, or enforceability just because they are in electronic form. Additionally, under the Act, the United States adopted a nondiscriminatory approach to electronic signatures and authentication methods from other countries.
Peer-To-Peer Music Exchange on the Internet
One of the most contentious issues of the Internet age is online peer-to-peer exchange of copyrighted material. The first free music exchange company, Napster, was shut down when federal courts in the United States found that users who participated in the peer-to-peer music exchange promoted by the company infringed on the exclusive reproduction and distribution rights of musicians and record companies.
The courts held that unauthorized use of copyrighted musical recordings within the framework of Napster’s peer-to-peer music exchange business was not “fair use.” In 2005, the Supreme Court of the United States held in MGM v. Grokster that companies whose free software allowed peer-to-peer distribution of lawful and unlawful copyrighted material on the Internet by third parties were liable for acts of infringement facilitated by the software.
The Culturalist Model
Many countries have the impression that their cultures are besieged by the globalization of American popular culture. Transformation of the Internet into an American-dominated commercial and multi-communication space, whose architecture closely mirrors America’s socio-cultural and political logic, has caused concerns in many parts of the world. Some countries have enacted Internet laws that are designed to protect their national cultures.
France is an example of the culturalist state. The French government has always defended what communication scholar Armand Mattelart calls “cultural sovereignty.” Under its ideology of exception culturelle (“cultural exception”), France does not want its culture subsumed within an undifferentiated “western” culture. Since the 1970s, French law has classified the French language and the French media and telecommunications infrastructure as part of its cultural heritage that should be jealously protected against Anglo-American domination. This culturalist perspective has also been applied to the Internet. France views the Internet as a cultural rather than a commercial platform, and regulates it within its protectionist framework.
The French view is expressed by Mattelart, who claims that over-commercialization of the Internet has led to a clash of two freedoms: the freedom of expression of citizens versus the freedom of commercial expression, a clash between human rights and commercial rights. Therefore, in France, laws mandate that websites located in the country be in French and that Internet content accessible to French citizens on French territory abide by the country’s content-based free speech regime. An American company, Yahoo! was fined for violating French Internet content laws. In order to protect French national identity, language, and culture on the Internet, new terminology spawned by technology is systematically replaced with French neologisms. For example, in 2003, the General Commission on Terminology and Neology officially approved replacement of the English word “email” with the French equivalent, courier éléctronique.
The Gateway Model
Under this model, a governmental agency serves as the de facto or de jure gateway to the Internet. Usually, the government creates a national intranet that insulates and isolates the country domain from the rest of the Internet. These intranets are often protected by firewalls and proxy servers that filter undesirable websites. Access to the Internet, or sections thereof, is thus granted or denied in the name of national security, culture, morality, or some other governmental interest.
The gateway model of Internet regulation can be described as a “command and control” regulatory posture. This model is most evident in countries with authoritarian or semi-authoritarian regimes like Russia, China, Burma, Cuba, Vietnam, and Saudi Arabia. In these countries, the government is both the Internet operator and regulator. The thinking behind the gateway model is that the Internet is an electronic conveyor belt for western decadent culture and political subversion, which could potentially infect religions, political systems, and cultures.
The Developmentalist Model
With the diffusion of the Internet around the world in the 1990s, the World Bank and the International Monetary Fund (IMF), United Nations specialized agencies like UNESCO and the ITU, and aid agencies like the United States Agency for International Development (USAID) and the Canadian International Development Agency (CIDA) conceptualized the Internet as a catalyst for economic and social development in the third world.
Kofi Annan, former Secretary General of the United Nations, said that by connecting to the Internet, African countries would become part of the global economy, leaving behind decades of stagnation and poverty. African countries were told that by connecting to the Internet, they would be able to bypass expensive information and telecommunications technologies. Most countries liberalized their telecommunications systems, and privatized state-owned telecommunications operators. While all African countries are now connected to the Internet, most of them do not have an adequate regulatory framework to deal with issues like online child pornography, Internet gambling, advance fee fraud, hackers, and phishing or identity theft. For example, in Nigeria, advance fee fraud solicitations through the mails are punishable under Decree No. 419. However, the Nigerian government has watched helplessly as this illegal activity has migrated to the Internet. Despite the legal vacuum in many African countries, regional economic groupings like the South African Development Community are taking steps to collectively regulate the Internet to suit the economic and cultural reality of the continent.
As the typology shows, global treaties, and conventions regulate the Internet at the international level while individual regions and countries have laws and policies that seek to shape “their” respective sections of the network to reflect their cultures, socio-political, and legal realities.
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