Why governments and citizens need a framework of values for the internet.
The challenge of jurisdiction and the authority to adjudicate or enforce has been exacerbated by an increasingly globalized world in which nation-states are struggling to reassert their unique sovereignty. The internet is no exception, and establishing jurisdiction for the web is essential for the well-being and security of everyone.
There is no consensus on who should be responsible for this jurisdiction, but it must ultimately be nation-states. Unfortunately, ICANN and W3C will only ever play an advisory and technically regulatory role in the administration of the Internet for the foreseeable future, as states are not ready to sacrifice any meaningful part of their sovereignty, such as the authority to adjudicate disputes on the internet. It is difficult to imagine any nonprofit group or private-public partnership overcoming the status quo power arrangement in a supranational, enforceable way. Therefore, nation-states will be the ones to act.
Although the web faces jurisdictional problems of being global, borderless, and immune from centralized control, those are the very characteristics that make it so conducive to democracy, entrepreneurship, and precious values like freedom of expression. As a society, it is our responsibility to introduce and uphold a framework that preserves those critical features. It is worth asking whether the current U.S. Constitution is a sufficient framework.
Lawrence Lessig argues in Code 2.0 that the U.S. Constitution must be applied in terms of its values, as the American founders intended. As precious as the Constitution is, though, it does not adequately protect the Internet user community (i.e., “Internet citizens”), whose values are threatened today. It does not contain a “right to privacy,” despite the claims of living constitutionalists and judicial activists. It also does not protect the rights of creative producers and intellectual property holders. It only gives Congress the power to legislate on the matter, which the present Congress is only interested in doing if it benefits increasingly concentrated and powerful corporations like the Recording Industry Association of America. Most importantly, the U.S. Constitution does not have authority outside of the United States, and national borders are particularly difficult to enforce in an increasingly shared and interconnected cyberspace. Something that could help meet these challenges is an Internet Citizen Bill of Rights.1
This framework would allow governments to legislate and regulate to protect their citizens while simultaneously holding policymakers accountable to the same standards. Even if there is no strong international cybercriminal court system to enforce adherence, the political pressure from adversaries, diplomatic pressure from allies, threats from self-designated vigilante justice warriors, and negative media coverage should combine to form a serious deterrent to unreasonable and unjustifiable violations of the international code. Governments would have to justify why they are violating the Internet Citizen Bill of Rights to their national citizens and to the “Internet citizens” of the world.
Particularly with regard to vigilante justice groups like Anonymous, who already operate outside of the bounds of the existing legal infrastructure, codifying international standards of Internet citizen rights would provide legitimate governments a rare opportunity to influence non-state actors. Because no such internet rights framework currently exists, Anonymous and other vigilante groups currently operate on a case-by-case, ad hoc basis. They have a powerful incentive to adopt a set of standards that will increase the legitimacy of their actions in the eyes of the world. It will also lend greater cohesion to the prioritization of their efforts and their resource allocation.
Governments and internet citizens alike would benefit from a thoughtful articulation of the values they wish to protect in cyberspace in the long term, the way the U.S. government and American citizens have benefited from the Bill of Rights. Although the Internet Citizen Bill of Rights will not singlehandedly solve the jurisdictional problem, it will help governments and citizens communicate about and further align their values. Therefore, the initiative would not only have immediate political benefits, but also lay a foundation for international cooperation in the future.
1. This suggestion is distinct from the Obama administration’s proposed Consumer Privacy Bill of Rights for two main reasons: (1) its scope is beyond the U.S. and (2) it does not focus exclusively on the issue of consumer privacy.
Nicole Bailey is a first-year student in the Global Communication program concentrating in IT and Middle East Studies at the Elliott School of International Affairs. She graduated from the University of Virginia with a degree in Political Philosophy, Policy, and Law. She can be reached via Twitter @nsunebailey.
Original image, available here, in public domain.