How Shall the Net Be Governed?

David G. Post                                                                                             Back to DPost Home Page
The American Lawyer, "Plugging In," October 1996 
There is no more fundamental question facing those who think about the legal regime for the developing electronic world than this: How will cyberspace be governed, and by whom? How will baseline rules of conduct that facilitate reliable communications and trustworthy commerce be established? Who will define, punish and prevent wrongful actions that trash the electronic commons or impose harm unjustifiably on others?

We take for granted a world in which geographical borders lines separating physical spaces are of primary importance in determining the rules that define legal rights and responsibilities: Law-making sovereignty itself is defined, at bottom, by control over a physical territory, and we look, essentially, to whether the persons residing in that territory have a voice in the exercise of that law-making power to assess whether or not the assertion of that power is legitimate. To be sure, this core assumption has been under strain in recent years as expansions in global trade and the ease of global transport and communication have increased the number and scope of interactions across physical boundaries, and global law-making institutions have been slowly adjusting to this gradual weakening of the significance of physical location. Multi-lateral action -- the GATT Treaty being perhaps the most noteworthy -- has been spurred by a recognition that an increased degree of harmonization of national intellectual property regimes is required in a world where goods and services can so easily cross national boundaries. Choice-of-law doctrine, too, has slowly adjusted; we no longer strictly apply the law of "the place" where an event or transaction takes place -- remember lex locus delicti and lex locus contractu? -- but look increasingly to where the effects of those events are felt for the source of applicable law.

But cyberspace does not merely weaken the significance of physical location, it demolishes it. It has no territorially based boundaries at all, because the cost and speed of message transmission on the Net is entirely independent of physical location: messages can be transmitted from any physical location to any other location without any distance-based degradation, decay, or delay, and without any physical cues or barriers that might otherwise keep certain geographically remote places and people separate from one another. The Net enables simultaneous transactions between large numbers of people who do not know, and in many cases cannot know, the physical location of the other party. One can logically and meaningfully talk of the "location" of events and transactions in cyberspace only in reference to a virtual space consisting of the "addresses" of the machines between which messages and information are routed; the system is entirely indifferent to the physical location of those machines.

And just as events in cyberspace thus take place "nowhere," they also can be characterized as taking place everywhere at once, in the sense that the effects of online activities are felt simultaneously in every corner of the global network. A World Wide Web page located on a machine in, say, Berlin can be accessed just as easily by users in Frankfort, Kentucky -- or anywhere with a Net connection -- as by those in Frankfurt, Germany; all jurisdictions simultaneously feel the effects of the information posted there, and thus all would appear to have equal claims to make the law governing the content of this site, surely a recipe for international chaos.

Any discussion of law in cyberspace must address this truly radical transformation of the law-making landscape. Want to control the transmission of pornographic material over the global net? Think you have the answer to the question of the proper scope of copyright in electronic information? Convinced that new rules regarding electronic contracts are required? In these and all other cases regarding activity in cyberspace, one must at some point stop and ask: Who will implement these rules, and by what means? If material placed on the net is equally accessible across the globe regardless of the geographical location from which it originates, can, say, the U.S. Congress determine whether or not the material is pornographic, or infringing of an author's copyright? If it does so, how can it enforce its determination when the source of the information is not within its borders? And if it relies on the within-border effects of online actions to justify its assertion of jurisdiction over, say, a World Wide Web server in Germany, or Mexico, or Brazil, what is to prevent the Germans, or Mexicans, or Brazilians from asserting their jurisdiction over Web servers in Des Moines or Dallas?

The difficulties that existing territorial sovereigns will experience if they seek to extend their jurisdiction to govern all actions on the net that have substantial effects on their own citizenry does not mean that the net is inherently ungovernable. Anarchy, after all, has its costs; random results -- systematic misrouting of messages, say -- don't encourage trade or continuing interactions among people or entities. Large numbers of users will not visit online spaces if they encounter systematic fraud or vandalism or other activities they view as harmful or antisocial. The basic problem of social life -- how can people order their collective affairs to achieve results that they cannot accomplish on their own -- has not disappeared in cyberspace, and one would expect that if one model of governance is inadequate for the task others will be tried. Existing sovereigns could enter into international agreements to establish new and uniform rules specifically applicable to conduct on the net. Alternatively, we can envision, perhaps, creation of a new international organization (along the lines of the World Trade Organization) to establish new rules -- and new means of enforcing such rules and of holding those who make the rules accountable to appropriate constituencies. But what is perhaps most interesting about the rise of cyberspace is the glimpse it gives us of a fourth possibility, what might be called "decentralized, emergent law."

Consider how the Internet arose in the first place: the Internet exists only because a very large number of individual computer networks voluntarily adopted a new language -- the "Internet Protocols," consisting of a series of technical rules governing the way that messages are to be formatted and routed from one machine to another -- that allows those networks to communicate with one another. No sovereign authority with the power to compel obedience among its subjects promulgated those rules, no treaty decreed that a specific set of such standards must be used in order to link each of the diverse individual networks together into a single global web. Instead, under the banner of "rough consensus and working code," groups like the Internet Engineering Task Force and the World Wide Web consortium -- unofficial, unsanctioned, collections of interested volunteers -- published proposed communication standards that became the "law of the net" only because large numbers of individual system administrators voluntarily adopted the proposed rules. Each individual network remains free to impose its own technical standards on its users -- the Microsoft Network uses different communications principles for intra-network communication than does America Online, or Counsel Connect, or the Georgetown University LAN -- subject to the overriding mandate that if it wants to enable communication with other similarly-situated networks, it must adopt the basic communication protocols that those other networks have adopted.

If one thinks about it in this way, the net is hardly a "lawless" place at all; it is, indeed, a remarkable triumph of international coordination and cooperation, a complex adaptive system that produces a type of order that does not rely on top down, hierarchical control. Can this decentralized governance model, of local diversity within voluntarily-adopted constitutive rules, be made to work outside of the narrow technical domain in which it has heretofore operated, i.e., can this process work to set rules governing human social behavior? Of course, we know that this model can work in some contexts -- it's called federalism, and we have witnessed its success in our own constitutional system and elsewhere. Electronic federalism looks very different than what we have become accustomed to, because here individual network systems, rather than territorially-based sovereigns, are the essential governance unit. The law of the net, in other words, can emerge from the voluntary adherence of large numbers of network administrators to basic rules of law (and dispute resolution systems to adjudicate the inevitable inter-network disputes), with individual users "voting with their electrons" to join the particular systems they find most congenial. Or perhaps we should think of this as the law of the nets, for one possible (or even likely) consequence of this evolutionary development is the emergence of multiple network confederations, each with their own "constitutional" principles -- some permitting and some prohibiting, say, anonymous communications, some imposing strict rules regarding redistribution of information and others allowing freer movement -- enforced by means of electronic fences prohibiting the movement of information across confederation boundaries.

This governance model does not, of course, "solve" all problems (any more than the existing system of international law perfectly administers and enforces rules in the non-virtual world), and these governance issues will not be resolved overnight. Nor will they be resolved without a struggle; existing sovereigns are not about to blithely relinquish their law-making prerogatives and go quietly into that "Twilight of Sovereignty" that Walter Wriston presciently foresaw several years ago. But the Internet itself is testament to the enormous power of this rule-making model that may, in the end, prove to be irresistable.