Cyber Law Cyber Law Internet Governance: Territorializing Cyberspace? CAROL M. GLEN Valdosta State University Internet governance evolved in an ad hoc ma

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Cyber Law

Internet Governance:
Territorializing Cyberspace?

CAROL M. GLEN
Valdosta State University

Internet governance evolved in an ad hoc manner and produced a
decentralized, regulatory environment that has been shaped by a myriad
of public and private organizations. The decentralized nature of this
form of Internet governance is now being challenged. New technical,
security, and privacy issues have raised political questions concerning
whether such loose regulatory coordination can adapt quickly enough
to twenty-first-century challenges. Such doubts go well beyond the
technical; they reflect profound questions about who should control the
Internet. This article examines the issue of Internet governance in light
of recent challenges. Discussion is centered on assessing efforts to
replace the current decentralized, multistakeholder governance model
with a centralized, multilateral model. Trends are examined with
reference to efforts by some member states of the International
Telecommunication Union to strengthen the role of governments in
Internet regulation, especially during negotiations at the 2012 World
Conference on International Telecommunications.

Keywords: Internet Governance, E-Government, Cyberspace,
Territorialization, Global Governance, Internet Policy, Multistakeholder
Governance, Multilateral Governance, World Conference on International
Telecommunications, WCIT, International Telecommunication Union,
Regulation Policy, Decentralization, Multistakeholderism, Security,
Privacy, Social and Moral Political Issues, International Relations.

Related Articles:
Walsh, James I. 2008. “Persuasion in International Politics: A Rationalist
Account.” Politics & Policy 33 (4): 642-670.
http://onlinelibrary.wiley.com/doi/10.1111/j.1747-1346.2005.tb00217.x/abstract
Turner, Scott. 1997. “Transnational Corporations and the Question of
Sovereignty: An Alternative Theoretical Framework for the Information
Age.” Southeastern Political Review 25 (2): 303-324.
http://onlinelibrary.wiley.com/doi/10.1111/j.1747-1346.1997.tb00841.x/abstract

Acknowledgements: The author would like to thank the anonymous reviewers of the manuscript,
as well as Dr. Emma Norman, at Politics & Policy for their insightful suggestions.

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Politics & Policy, Volume 42, No. 5 (2014): 635-657. 10.1111/polp.12093
Published by Wiley Periodicals, Inc.
© 2014 Policy Studies Organization.

Fisher, Bonnie, Michael Margolis, and David Resnick. 1996. “Surveying
the Internet: Democratic Theory and Civic Life in Cyberspace.”
Southeastern Political Review 24 (3): 399-429.
http://onlinelibrary.wiley.com/doi/10.1111/j.1747-1346.1996.tb00088.x/abstract

Related Media:
Film Clips: E.U. Registry. 2010. What is Internet Governance?

Diplofoundation. 2008. Evolution of Internet Governance.

ISOCDC Panel Discussion. 2014. Internet Governance 2020: Geopolitics
and the Future of the Internet.

La gobernanza de la internet se desarrolló de manera específica y
produjo un entorno regulatorio descentralizado que ha sido moldeado
por una miríada de organizaciones públicas y privadas. La naturaleza
descentralizada de esta forma de gobernanza está siendo cuestionada.
Nuevos asuntos tanto técnicos como de seguridad y privacidad han
provocado inquietud política sobre qué tanto el entorno regulatorio
descentralizado podría adaptarse oportunamente a los desafíos del siglo
21. Las inquietudes van más allá de lo técnico; reflejan preguntas serias
sobre quién debería controlar la internet. Este artículo examina el
asunto de la gobernanza de la internet a la luz de desafíos recientes. La
discusión se centra en la evaluación de los esfuerzos para remplazar el
actual modelo de gobernanza descentralizado y de múltiples entidades
involucradas en su regulación, a un modelo de gobernanza centralizada
y multilateral. Tomo en cuenta las tendencias con referencia a los
esfuerzos de estados miembros de la Unión Internacional de
Telecomunicaciones de reforzar el papel de los gobiernos en la
regulación de la internet, especialmente durante las negociaciones de la
conferencia mundial de Telecomunicaciones Internacionales de 2012.

Internet governance evolved in an ad hoc manner and produced a
decentralized regulatory environment that has been shaped by a myriad of
public and private organizations, as well as civil society. Governance by these
multistakeholder networks has been so conducive to growth that the Internet is
said to be the fastest growing resource ever known (Toure 2011). Nevertheless,
the decentralized nature of this form of Internet governance is now being
challenged. New technical, security, and privacy issues have raised political
questions concerning whether such loose regulatory coordination can adapt
quickly enough to twenty-first-century challenges. Such doubts go well beyond
the technical; they reflect profound questions about who should control the
Internet.

This debate also relates to a broader theoretical discussion concerning
global governance. More than 20 years ago, Peter Haas (1992) argued that as

636 | POLITICS & POLICY / October 2014

governance becomes increasingly technical, government leaders turn to experts
to acquire information to help ameliorate uncertainties. The highly technical
nature of some aspects of the Internet has increased the need for such
nongovernmental experts, especially in the area of governance. The Internet
enhances the power of nonstate actors, permitting them to network at an
ever-increasing level of sophistication (Drezner 2004). Internet policy and
regulation, probably more than any other area of international relations,
has been shaped by nonstate actors. Recent events, however, suggest
that this multistakeholder model of Internet governance is under
threat. Challenges to existing Internet governance arrangements surfaced
prominently before and during negotiations at the World Conference on
International Telecommunications (WCIT), convened by the International
Telecommunication Union (ITU), a specialized agency of the United Nations
(UN), in December 2012. The ITU was established in 1865 as the main standard
setting organization for international telecommunications, and before the 2012
WCIT had been largely noncontroversial. The organization is charged with
such seemingly mundane but important tasks as allocating the global radio
spectrum and satellite orbits, developing technical standards that ensure
networks connect, and improving global access to information and
communication technology (ICT). Although the ITU lists 700 private sector
entities among its membership, it is only the 193 member states that participate
and vote in the Plenipotentiary Conference, the key event at which member
states decide on the future policies of the organization.1 The ITU is, therefore,
a typical multilateral organization; decision-making power is held by states that
cooperate to develop international communications and telecommunication
policies.

The last major treaty negotiated under the auspices of the ITU created the
International Telecommunications Regulations (ITRs) in 1988. Ratified by 190
countries, these regulations outlined the principles underpinning international
voice, data, and video traffic, and were successful in bringing a level of
standardization to ICT. In the years that followed, however, a growing
consensus emerged recognizing that the 1988 regulations needed to be updated
to take account of the dramatic changes that had taken place in international
telecommunications. The growth of the Internet as a telecommunications
medium, therefore, placed the ITU at the center of the Internet governance
debate, and also brought considerable controversy. The intergovernmental
structure of the ITU prompted fears that the traditional multistakeholder model
of Internet governance was about to be replaced by a multilateral approach that
would give the ITU control over the Internet.2

1 For more information concerning ITU responsibilities, visit http://www.itu.int/en/Pages/default
.aspx
2 For example, on December 5, 2012, the U.S. House of Representatives unanimously passed a
resolution urging the U.S. government not to give the ITU control over the Internet.

Glen / INTERNET GOVERNANCE | 637

The 2012 WCIT is particularly significant for the study and practice of
Internet governance for it raises questions concerning the role of nation states
in Internet governance, as well as the crucial issue of multistakeholder
representation (Levinson 2012). The primary focus of this article is, therefore,
on the techno-political controversies that surrounded the 2012 WCIT,3 in
particular efforts by some member states of the ITU to replace the current
decentralized, multistakeholder Internet governance model with a centralized,
intergovernmental, multilateral one. In doing so, the inherent conflict
between two competing theoretical perspectives, multistakeholderism and
multilateralism, is also addressed. To add context, the article begins by
reviewing the theoretical underpinnings of Internet governance with an
overview of the concept of global governance generally. The global governance
literature is relevant because it highlights the increasingly influential role of
nonstate actors in governance. I then assess the multifaceted nature of the
current multistakeholder Internet regulatory framework, especially the central
role afforded to the Internet Corporation for Assigned Names and Number
(ICANN) within the system. The authority of ICANN was challenged before
the WCIT meeting, and continues to be challenged today. The heart of the study
analyzes the competing debates that emerged at the WCIT and introduces three
new taxonomies to delineate competing policy positions of ITU member states
before and during the conference. Two of these policy perspectives sought to
challenge existing multistakeholder arrangements, while the third sought to
maintain the status quo.

Global Governance

The term governance has been used in international relations literature for
many years, but not always with clear and consistent meaning. Finkelstein
(1995, 368) described governance as a fuzzy term that we use “when we don’t
really know what to call what is going on,” while others have noted that the
“loose handling of the concept has contributed to blurring much of its content”
(Dingwerth and Pattberg 2006, 188). By 2004, Van Kersbergen and Van
Waarden commented that the governance literature had become a “veritable
growth industry” characterized by theoretical and conceptual confusion (Van
Kersbergen and Van Waarden 2004, 144). Even a cursory review of the
governance literature confirms that the term has been used in a variety of ways.
Governance describes a system of governing styles where the boundaries of
public and private sectors have become blurred (Stoker 1998). It involves a
dichotomous redefinition of the relationship between government and society,
or between state and market Glasbergen (1998). It is the setting, application,

3 Rasmussen (2007) discusses techno-political issues in relation to culture.

638 | POLITICS & POLICY / October 2014

and enforcement of the rules of the game (Kjaer 2004, 12), and it refers to
interorganizational networks characterized by interdependence and autonomy
from the state (Rhodes 1997, 15).

At the international level, several authors have attempted to clarify the
meaning of the term. Dingwerth (2008, 1) asserts that the “global governance
thesis” can be disaggregated into four major claims: the internationalization of
policy making, diffusion of authority beyond the state, changing procedural
norms beyond the state, and the distribution of governing resources among an
increasing range of actors. Bierstecker (2011) characterizes global governance as
patterned regularity at the international level that has purposive goals, formal
and informal rules, and authoritative self-regulation.

Much of this literature draws from, and builds upon, broader analyses of
international relations that focus on the issue of global order. Rosenau (1992, 8)
notes that governance and order are interactive phenomena: “there can be no
order without governance and no governance without order.” He also warns
that we should not conflate government and governance, they are not
synonymous. While the former can exist in the presence of widespread
opposition to its policies, the latter requires acceptance by the majority of those
it affects. From this line of reasoning, Rosenau (1992) asserts that informal
mechanisms of governance can exist without the presence of formal government
authority. The state-centric world, where national actors dominate, is said to
coexist with a multicentric world that includes a diverse range of relatively equal
actors (Rosenau 1992). The idea that world order can be maintained in the
absence of centralized government authority echoes regime theory. However,
there are distinctions between these two concepts. Whereas regimes are “sets of
implicit or explicit principles, norms, rules and decision-making procedures” in
a given issue area of international relations (Krasner 1983, 2), governance is not
confined to a single policy area. Regimes can therefore be characterized as a
subcategory of global governance (Rosenau 1992).

The literature on governance and regimes highlights the emergence of
nonstate actors on the global political stage, so too does the literature on
networks. Like the concept of governance, networks have been defined in a
number of different ways. In their transgovernmental form, they are described
as peer-to-peer interactions between domestic officials and their foreign
counterparts (Slaughter and Zaring 2006). These transnational regulatory
networks (TRNs) bring together representatives from national regulatory
agencies “to facilitate multilateral cooperation on issues of mutual interests”
(Verdier 2009, 118). Such arrangements help solve some of the collective
problems caused by globalization because they are able to address complex
issues in a speedy and flexible manner, unhindered by partisan politics
(Slaughter 2004). Another important idea related to networks and governance is
the concept of epistemic communities. Like TRNs, epistemic communities
comprised issue experts, but they also encompass professionals from outside
of regulatory agencies. Moreover, epistemic communities also differ from

Glen / INTERNET GOVERNANCE | 639

bureaucratic entities because their members exhibit a set of “shared normative
and causal beliefs” that coalesce around a common set of policy goals (Haas
1992). A third form of governance network that is relevant to the present
discussion concerns global public policy networks. These have been defined as
“multisectoral partnerships linking different sectors and levels of governance
and bringing together governments, international organizations, corporations
and civil society” (Streck 2002, 123). This definition sees networks as actors who
coordinate collective action in pursuit of policy goals at the international level.
Networks are commonly distinguished from the hierarchical organization of
states because of their decentralized decision making and their horizontal
patterns of interaction (Zanini and Edwards 2001, 33).

A further evolution in the practice of global governance emerged at the
beginning of the twenty-first century in the concept of multistakeholderism. A
somewhat inelegant term, it refers to the “processes which aim to bring together
all major stakeholders in a new form of communication, decision-finding (and
possibly decision making) on a particular issue” (Hemmati 2002, 2). The
multistakeholder concept has been championed by the UN as a way to
democratize and legitimize decision making at the international level. As a 2004
UN report illustrates, the UN “should emphasize the inclusions of all
constituents relevant to the issue . . . and foster multistakeholder partnerships to
pioneer solutions and empower a range of global policy networks” (Cammaerts
2011, 133). Multistakeholderism has become increasingly visible across a broad
range of issues, including global business regulation (Waz and Weiser 2012) and
diplomacy (Hocking 2006). However, nowhere has multistakeholderism been
more developed than in the area of Internet governance.

Global governance, regimes, networks, and multistakeholderism all point to
a fundamental shift in the way that international relations function. Sovereign
states have been joined by a myriad of other actors who now have important
roles to play in shaping global policy agendas. Although the relative power of
these new actors vis-à-vis the state can be debated (and it is certainly not equal),
their presence illustrates that international relations is now about more than
interstate relations. At their core, these theoretical models challenge
perspectives that focus on intergovernmental cooperation to the exclusion of
other actors. As such, they are more relevant to discussions of Internet
governance than those based on state-centric assumptions. The practice of
Internet governance incorporates numerous facets proposed in the global
governance literature, including the internationalization of policy making,
public–private partnerships, the growing importance of technical experts,
peer-to-peer interactions, as well as diffused authority. With respect to Internet
governance, Mueller (2010) describes the latter as distributed control, arguing
that the sheer volume of Internet transactions often overwhelms traditional
government processes, creating a disconnect between political authority and
Internet control. “Decision-making authority over standards and critical
Internet resources rests in the hands of transnational networks of actors that

640 | POLITICS & POLICY / October 2014

emerged organically alongside the Internet, outside of the nation-state system”
(Mueller 2010, 4).

Current Internet Regulatory Framework

Internet governance is not without its challenges; the Internet has grown in
a piecemeal, uncoordinated fashion, it has traditionally lacked centralized
authority, and it extends across a multitude of diverse jurisdictions. This has led
to a common perception that the Internet is ungovernable, a “benevolent
anarchy” (Klein 2002, 193). However, the growing corpus of regulations
contradicts this view. Not only is the Internet regulated, but multistakeholder
participation in shaping that regulation is highly developed. Nonstate actors
have played a prominent role from the earliest days of Internet regulation, none
more so than the ICANN. This organization lies at the heart of Internet
governance. Its significance for the present discussion is based on the fact that
ICANN was founded as an alternative to existing intergovernmental
organizations, such as the ITU (Mueller and Woo 2004).

ICANN was established in 1998 as a private, nonprofit organization,
governed by California law and operating on the basis of a Memorandum of
Understanding with the U.S. Department of Commerce. It is responsible for the
Internet’s domain name system, which means that it allocates and controls
Internet domain names and numeric IP addresses, and manages the “root,” the
master file of top-level domain names. Although these functions appear to be
largely technical in nature, they have very significant political implications. A
domain name is required to exist on the Internet, without that name a computer
will not be found by others. Whoever controls the allocation of domain names
controls the Internet (Klein 2002, 195). This is a sizeable business; ICANN
regulates a $3 billion per year domain name registration industry, which gives it
considerable power over technical standards (Mueller and Woo 2004, 7). The
establishment of ICAAN was noteworthy not only because it represented
the centralization and privatization of control over the Internet, but also
because it was a “revolutionary departure from traditional approaches to global
governance” (Mueller 2010, 60).

ICANN is governed by a 21-member Board of Directors, which is required
to be responsive to the Internet community, through consultations, public
meetings, and coordination. Indeed, ICANN’s founding document stipulated
that this new body should be committed to “private, bottom-up coordination”
and be open to “input from a broad and growing community of Internet users.”4

On paper, ICAAN exemplifies a multistakeholder system where governments
are relegated to an advisory role that takes place within the Government

4 ICANN’s founding memorandum can be found here: https://www.icann.org/resources/
unthemed-pages/icann-mou-1998-11-25-en

Glen / INTERNET GOVERNANCE | 641

Advisory Committee. While ICANN is clearly not an intergovernmental body,
some question the degree to which ICANN is truly accountable. Mueller (2010,
248) asserts that ICANN has “created a mélange of participatory mechanisms,
none of which have any real power . . . [it] is a parody of bottom-up consensus
building-governance.” Others point out that the ICANN Board of Directors
has always been subject to a higher authority, that of the U.S. government. “The
Internet was internationalized and privatized but only under the watchful
oversight of the US government” (Klein 2002, 201).

Multistakeholder participation has also grown as result of purposeful UN
action. The two UN-sponsored World Summits on the Information Society
(WSIS) held in Geneva in 2003 and in Tunis in 2005 proved to be particularly
important. Both were designed to promote bottom-up multistakeholder
participation, and each attracted representatives from governments and civil
society across the globe. Although the main focus of these summits was intended
to be the global digital divide, they nevertheless offered an authoritative
definition of Internet governance that is founded on the multistakeholder
principle.

Internet governance is the development and application by governments,
the private sector and civil society, in their respective roles, of shared
principles, norms, rules and decision-making procedures, and programmes
that shape the evolution and use of the Internet. (Working Group on
Internet Governance 2005, 11)

The application of multistakeholderism is also evidenced in the Internet
Governance Forum (IGF). Established in 2006, the IGF brings together
all interested stakeholders in the Internet governance debate, including
representatives of governments, civil society, business, and academia. Its
mandate includes requirements to strengthen the engagement of stakeholders
and make recommendations regarding emerging governance issues. The
barriers for participation in IGF meetings are low, so participation is high. One
analysis showed that the participation by governments (26 percent), civil society
(24 percent), and the private sector (20 percent) are relatively even, with slightly
lower participation from the technical and academic community (15 percent)
(Maciel and Pereira de Souza 2011).

Tangible collaborative innovations that emerged from the first IGF meeting
in Athens 2006, and continued thereafter, are known as dynamic coalitions.
These informal issue-specific groups comprise members from a variety of
stakeholder groups organized on a functional basis. They are quintessential
epistemic communities because they comprised experts who have competence
in a particular domain and who have shared normative beliefs. A review
of their membership reveals that they include representatives from
academic institutions, government agencies, international organizations, and
nongovernment organizations, as well as private telecommunications and media

642 | POLITICS & POLICY / October 2014

companies. At the time of writing, there were one dozen dynamic coalitions,5

but the Dynamic Coalition on Core Internet Values is the most relevant to the
present discussion. As its name suggests, the stated aim of this coalition is to
create and define a core list of values designed to inform and shape discussions
as the Internet continues to evolve. Coalition objectives are clearly normative,
as the following excerpt from their 2009 workshop indicates:

The Internet model is open, transparent, and collaborative and relies on
processes and products that are local, bottom-up, and accessible to users
around the world. These principles and values are threatened when policy
makers propose to regulate and control the Internet, with inadequate
understanding of the core values. (Intergovernmental Forum 2009)

It is the perceived attack on core Internet values that created the firestorm
that surrounded the 2012 WCIT, especially with regard to Internet regulations
and governance.

World Conference on International Telecommunications:
Competing Visions of Internet Governance

Opposing visions of Internet governance emerged in difficult and
contentious negotiations during the 2012 WCIT. During the 12-day conference,
more than 1,275 proposals were discussed by more than 1,600 delegates, but in
the end the treaty that was produced fell far short of unanimous support. The
main point of contention was again Internet governance. It is easy to depict the
controversies surrounding the WCIT as signaling a new Cold War over Internet
governance, and many have done so.6 These divisions have been most frequently
portrayed as a split between governments that strive to protect and promote
freedom of expression, and those that seek to use the Internet to censor and
control their populations. While this narrative may be applicable in some, or
even many, cases, it does not tell the full story. An analysis of policy positions
prior to and during the WCIT reveals that there were three, not two, competing
policy visions. These are delineated here as the following archetypes: (1) the
open multistakeholder model, (2) the repressive multilateral model, and (3) the
open multilateral model, outlined in Table 1.

The first of these, the open multistakeholder model, in its purest form refers
to openness in terms of limited regulation, freedom of expression, and free
market interests. This position is consistent with the historical development of
Internet norms. While the Internet grew out of research conducted by the U.S.

5 For a list of dynamic coalitions and a description of their goals, see http://www.intgovforum
.org/cms/dynamiccoalitions/90-dynamic-coalitions/dc-meetings-2009#weblog
6 The following article headline from The Economist is one example, “A Digital Cold War.”
December 14, 2012. http://www.economist.com/blogs/babbage/2012/12/internet-regulation

Glen / INTERNET GOVERNANCE | 643

Department of Defense, it was nevertheless promoted as a vehicle for
unrestricted academic research and communication from its earliest days. The
establishment of the Internet as an “open commons” was a deliberate policy
choice to promote innovation and free expression. The core architectural
guideline of the Internet is the end-to-end-principle. It is based on the idea that,
in a distributed computing network, functionality should be provided by end
hosts rather than by the network itself, using a common protocol known as
TCP/IP. It was first proposed by Saltzer, Reed, and Clark (1981), and the design
led to a number of technological advances, including most significantly, the
creation of the World Wide Web.

The end-to-end principle is based on the idea of smart terminals and a dumb
network, as well as the assumption of “net neutrality.” The term was coined by
Tim Wu, when he described net neutrality as “an Internet that does not favor
one application over others” (Wu 2003). Essentially, net neutrality is a
nondiscrimination principle that affirms that all Internet content should be
treated in the same way. In other words, all Internet data should be transmitted
equally, regardless of content; any computer can send an information packet
to any other computer without interference in the transmission of that
information. There should be no separate “fast lanes,” no selectivity by carriers
over content, and no blocking of access to some websites. The “dumb” network
does not examine the constituent parts of the communication. This architecture
has been credited with the rapid growth of the Internet. As Vinton Cerf (2005),
coinventor of the Word Wide Web noted in a letter to Congress, the success of
the Internet can be directly attributed to the fact that …

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