International Regulation of the Internet

by

Antonio Segura Serrano

• LAST MODIFIED: 25 September 2019
• DOI: 10.1093/obo/9780199796953-0194

Introduction

The international regulation of the Internet may be understood in two different ways. From a narrow point of view, it may be conceived as equivalent to Internet governance, i.e. comprising exclusively the institutional arrangements that enable the Internet to function. From a comprehensive point of view, it may be interpreted more widely, including all sectors and areas where international law rules that intersect or interact with the Internet may be found. The Internet is a pervasive network that nowadays touches upon the lives of public and private actors. This article aims to present an account of the many domains in which international regulation may be found or may be needed if universal or community interests are to be protected. If although state practice and the codification of international law rules regarding the Internet are now in flux, due to the unwillingness of states or, in other words, the impossibility of finding universal consensus on the matter, it is possible to identify areas in international law that already apply to online activities. To be sure, this use is in many instances a difficult one, as this new technology challenges the extant legal framework. But today the applicability of international law to activities carried out with respect to the Internet is not only possible, it is also necessary as this new medium is truly global. Even though if there is not a new demos, or because of that, international law rules in the traditional sense are needed to solve the new challenges. This is why traditional doctrines on jurisdiction and state responsibility, together with cybersecurity rules (warfare is not the object of this contribution), have been put to work, with adjustments necessary to make their functioning appropriate to the new circumstances. Furthermore, taking into account the reinforced role of nonstate actors in this field, international cooperation is needed to address the problems of cybercrime, cyber espionage, and cyber terrorism, although in this the latter is not as ubiquitous as the former. Moreover, international human rights norms must be confirmed with respect to the Internet, as those rights are exposed to the same risks, if not more, by state activities as in the real world. Finally, the issue of Internet governance as addressed in this article is treated as one in which it is necessary to ensure in the long run that this new medium is organized following the principles of democracy and inclusion.

General Overviews

General approaches on the issue of international regulation of the Internet have evolved over time. Initially, the libertarian point of view, as represented in Johnson and Post 1996, prevailed in the 1990s, although it was soon counterbalanced by other international legal scholars in works such as Goldsmith 1998, which asserts that international regulation of the Internet is feasible and legitimate. In the 21st century, the specific role of international law in this field has been analyzed in further depth, with Segura-Serrano 2006 even proposing the concept of the “common heritage of mankind” as grounds for Internet governance. Voltag 2010 gives a succinct vision on the matter and offers a good overview of the legal issues at stake, actually advancing the main principles of “international Internet law,” as labeled in Uerpmann-Wittzack 2010. However, over the years new contributions in the form of monographs or edited volumes have appeared, signaling a rising interest in this domain. Some of these contributions follow a traditional international legal approach and tend to cover all legal issues at stake. For example, Tsagourias and Buchan 2015 is an edited volume that covers general doctrines of international law (jurisdiction, responsibility, human rights, ius ad bellum, and ius in bello) as well as substantive problems such as cyber terrorism, cybercrime, and cyber espionage. The same is true of a more recent book, Kittichaisaree 2017, which argues for exclusion of any role for international law on Internet governance. Taking an even more comprehensive approach, Ziolkowski 2013 is an edited volume of the NATO Cooperative Cyber Defence Centre of Excellence that ranges from technical questions to legal and nonlegal issues. A different, more integrated approach is embraced in Shackelford 2014, which seeks to articulate a legal framework on Internet regulation from a polycentric governance point of view. This latter work signals a new development in the field, as it seeks to legally incorporate nonstate actors in the regulatory puzzle nowadays existing in this field, according to the prevailing views concerning the multi-stakeholder model that may be found in the United States, as represented in Eichensehr 2015.

• Eichensehr, Kristen E. “The Cyber-Law of Nations.” The Georgetown Law Journal 103 (2015): 317–380.

  The author first describes the evolution of the regulation of the Internet and the current tensions on this issue. A comparison is then drawn between cyberspace and other fields of common concern, such as the high seas, outer space, and Antarctica (governed by a treaty regime, with no role for private parties, and demilitarized). The author affirms that cyberspace should be subject to a loosely created “norms” system, governed through a multi-stakeholder model, allowing for regulated militarization.

• Goldsmith, Jack L. “Against Cyberanarchy.” University of Chicago Law Review 65 (1998): 1199–1250.

  DOI: 10.2307/1600262

  Goldsmith presents a powerful counterargument against the libertarian approach prevailing in the 1990s. He contends that national and international regulation of cyberspace is feasible and legitimate. He states that traditional tools of jurisdiction and choice of law apply to cyberspace transactions as much as offline, international harmonization being the strategy to cope with some regulatory problems like spillover and evasion.

• Johnson, David R., and David Post. “Law and Borders: The Rise of Law in Cyberspace” Stanford Law Review 48 (1996): 1367–1402.

  DOI: 10.2307/1229390

  A seminal work embracing a libertarian approach, now abandoned, both from a descriptive as well as a normative point of view. Although it does not deal directly with international law, it asserts that, due to the absence of territorial borders, and also based on the idea of comity in international relations, cyberspace should be considered a distinct place free of any kind of regulation and governed only by self-regulation.

• Kittichaisaree, Kriangsak. Public International Law of Cyberspace. Cham, Switzerland: Springer, 2017.

  DOI: 10.1007/978-3-319-54657-5

  A book with a general approach covering the key cyberspace issues. It starts with jurisdiction and state responsibility and includes an in-depth survey of the human rights aspect. Then, it turns to the rules of ius ad bellum (accepting self-defense regarding nonstate actors as well as reprisals) and ius in bello. It also considers cybercrime and cyber terrorism, finally dismissing any role for international law regarding cyberspace governance.

• Segura-Serrano, Antonio. “Internet Regulation and the Role of International Law.” Max Planck Yearbook of United Nations Law 10 (2006): 191–272.

  The author affirms that international law has played an important role regarding the regulation of Internet issues, such as free speech against harmful content, intellectual property protection, and privacy protection, that have led to uneven regulatory results. He also posits a prospective approach regarding the regulation of issues such as use of force and Internet governance through the concept of the common heritage of mankind and access to the Internet as a human right.

• Shackelford, Scott J. Managing Cyber Attacks in International Law, Business, and Relations: In Search of Cyber Peace. New York: Cambridge University Press, 2014.

  DOI: 10.1017/CBO9781139021838

  A general work that, through the lens of the polycentric governance approach, deals with almost every aspect relating to the Internet, ranging from its extant threats to its character as pseudo-commons and to the whole array of international norms, including the law of armed conflict. The author also analyzes cybersecurity from both a public and a private point of view. He finally offers a cyber peace model of governance.

• Tsagourias, Nicholas, and Russell Buchan, eds. Research Handbook on International Law and Cyberspace. Cheltenham, UK: Edward Elgar, 2015.

  This handbook is a primer for international lawyers interested in this field. Written by renowned authors, it covers general topics such as jurisdiction, state responsibility, and human rights as well as the issues of cyberterrorism, cybercrime, and cyber espionage. Together with the several chapters devoted to ius ad bellum and ius in bello, it also covers cyber security from the point of view of principal international organizations.

• Uerpmann-Wittzack, Robert. “Principles of International Internet Law.” German Law Journal 11 (2010): 1245–1263.

  DOI: 10.1017/S2071832200020204

  The author analyzes five core principles of international Internet law, understood as subsidiary sources of Article 38(1)(d) ICJ Statute. He asserts that Internet freedom protects communication but not business, whereas it also may collide with Internet privacy. It states that territorial jurisdiction has been adapted to this field regarding the effects doctrine and the ccTLDs. Finally, he downplays interstate cooperation whereas perhaps he overestimates the current controversial multi-stake cooperation.

• Voltag, Johann-Christoph. “Internet.” In Max Planck Encyclopedia of Public International Law. Edited by Rüdiger Wolfrum. Heidelberg, Germany: Max Planck Institute for Comparative Public Law and International Law, 2010.

  This short piece focuses on Internet governance, describing the Internet Corporation for Assigned Names and Numbers (ICANN) and its reforms and pointing to the need for a more legitimate regulatory approach. The related questions of sovereignty (jurisdiction) and the Uniform Domain Name Dispute Settlement mechanism are assessed, together with the current issue under debate of net neutrality. Specific legal issues such as the protection of human rights, electronic commerce, and cybercrime are also addressed.

• Ziolkowski, Katharina, ed. Peacetime Regime for State Activities in Cyberspace: International Law, International Relations and Diplomacy. Tallinn, Estonia: NATO Cooperative Cyber Defence Centre of Excellence, 2013.

  A fairly comprehensive study composed of twenty-two chapters covering issues that range from technical questions to legal and nonlegal topics. From an international legal approach, expected topics such as sovereignty, nonintervention, attribution of state responsibility, due diligence, countermeasures, and espionage are the subjects of analysis by several authors in chapters in this book.