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Internet Governance and Democratic Legitimacy Federal Communications Law Journal Volume 62 Issue 2 Article 2 4-2010 Internet Governance and Democratic Legitimacy Oliver Sylvain Fordham University School of Law Follow this and additional works at: https://www.repository.law.indiana.edu/fclj Part of the Administrative Law Commons, Antitrust and Trade Regulation Commons, Communications Law Commons, Internet Law Commons, and the Legislation Commons Recommended Citation Sylvain, Oliver (2010) "Internet Governance and Democratic Legitimacy," Federal Communications Law Journal: Vol. 62 : Iss. 2 , Article 2. Available at: https://www.repository.law.indiana.edu/fclj/vol62/iss2/2 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Federal Communications Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Internet Governance and Democratic Legitimacy Olivier Sylvain* I. INTRODUCTION ......................................................................... 206 II. THE TECHNOLOGICAL APPROACH TO BROADBAND POLICYM AKING ........................................................................ 211 A. The Affordances and Capabilitiesof Broadband ............ 211 B. A Problem ofNetwork Management: The Comcast Ca se ................................................................................ 2 13 1. T he D ecision ........................................................... 216 2. Im plications ............................................................. 220 C. The TechnologicalApproach as Regulatory G overnance...................................................................... 223 1. Programming Code Acting as Law ......................... 225 2. Self-Regulatory Organizations Acting as L aw givers ................................................................ 226 D. Regulatory Deference as Regulatory Incapacity............. 229 III. THE ECONOMIC APPROACHES TO BROADBAND POLICYM AKING ........................................................................ 233 A . C omp etition...................................................................... 235 1. Early Computer-Enhanced Communications Service ..................................................................... 235 2. Minimal Interference for Broadband Service .......... 238 * Visiting Assistant Professor, Fordham University School of Law; Doctoral Candidate, Columbia University, Communications. I am grateful to Bennett Capers, Matthew Diller, Sheila Foster, Tom Glaisyer, Sonia Katyal, Robin Lenhardt, Julian Mortenson, Joel Reidenberg, Katherine Strandburg, Phil Weiser, and Ben Zipursky for comments on earlier drafts. Research assistance from Matthew Buchwach, Kristina Cerrone, Brett Katz, and Mark Nelson was invaluable. Any remaining errors are mine alone. FEDERAL COMMUNICATIONS LAW JOURNAL [Vol. 62 B. Emergence Economics..................................................... 242 1. The W ealth of Networks ......................................... 242 2. Why Network Wealth Is Not All That Matters ....... 244 C. Efficiency and Welfare Economics .................................. 246 D. Liberal Deference and Self-Governance ......................... 249 IV. THE PARTICIPATORY APPROACH TO BROADBAND POLICYM AKING ........................................................................ 251 A. Civic Republicanism........................................................ 253 1. The Theory .............................................................. 253 2. Case Study: The Postal System ............................... 254 3. Republicanism and the Internet ............................... 255 B. ParticipatoryGovernance ............................................... 261 1. The Theory .............................................................. 263 2. Case Study: Broadcasting ........................................ 264 C. Sketches for Reform: PrivilegingCivic-Minded Uses ..... 271 V . CONCLUSION ............................................................................ 273 I. INTRODUCTION Decentralization, user empowerment, and interoperability are engineering principles that have made the Internet an unrivaled medium for innovation today.' The Internet's remarkable growth has forced policymakers and legal scholars generally to privilege these principles above all others in their approach to Internet governance. Prominent legal scholars, for example, have enlarged the normative significance of decentralization, user empowerment, and interoperability by identifying them with prevailing administrative law doctrine and policy. Some would have governmental policymakers defer substantial first-instance rulemaking authority to private self-regulatory organizations, like the Internet Engineering Task Force (IETF), for which decentralization, user empowerment, and interoperability are a priority.2 The geographically dispersed engineers and application designers who populate the Internet, these legal scholars assert, are far better suited than centralized agency bureaucrats to develop the rules for broadband network management.3 1. See Memorandum from the Network Working Group on Internet Best Current Practices (Oct. 2004), available at http://www.ietf.org/rfc/rfc3935.txt ("The Internet isn't value-neutral, and neither is the IETF. We embrace technical concepts such as decentralized control, edge-user empowerment and sharing of resources.") [hereinafter NWG 2004 Memo]. 2. Philip J. Weiser, The Future of Internet Regulation, 43 U.C. DAvis. L. REv. 529 (2009); Kevin D. Werbach, Higher Standards: Regulation in the Network Age, 23 HARV. J.L. & TECH. 179, 217 (2009). 3. Hearing on The Role of Standards in Growth of the Global Electronic Commerce Before the Subcomm. on Sci., Tech. & Space, House Comm. on Commerce, Sci. & Tech., Number 2] INTERNET GOVERNANCE & DEMOCRATIC LEGITIMACY 207 Besides, the strongest version of this argument goes, the deliberative processes by which the IETF develops transmission standards are far more transparent and democratic than extant governmental processes.4 This administrative approach does not recommend any particular substantive rules apart from those developed by standard-setting organizations, like the IETF.5 I refer to this as the "technological" approach. The FCC's decision in August 2008 reprimanding the Comcast Corporation for blocking access to applications that require high bandwidth without subscribers' consent is the most recent and prominent articulation of this approach.6 Other legal scholars identify the engineering principles of decentralization, user empowerment, and interoperability with economic analysis-what I call here the "economic" approaches to broadband policymaking. Adherents of emergence economics, for example, draw on the theory of network effects to argue that universal access and nondiscrimination rules (colloquially referred to as "network neutrality"), in particular, will help to grow the economy and, as a result, improve consumer welfare.7 Writers in this line tend to argue for a policy of network neutrality that would, first, bar network owners and broadband service providers from blocking users' access to online applications and content without their consent, and, second, forbid network owners from unreasonably discriminating against unaffiliated applications, services, and content.8 Adherents of classic liberal economic theory, on the other hand, posit that centralized government administration (through, for example, the enforcement of network neutrality) is a hindrance to the efficient operation 106th Cong. (1999) (statement of Andrew J. Pincus, Gen. Counsel, Dep't of Commerce), availableat http:// www.ogc.doc.gov/ogc/legreg/testimon/106f/pincus1028 ("The needs and dynamics of the marketplace, and not governments, must guide standard development and implementation activities. Governments should refrain from issuing technical regulations and instead should rely, to the maximum extent possible, on the private sector to self- regulate."). 4. Stacy Baird, The Government at the Standards Bazaar, 18 STAN. L. & POL'Y REV. 35, 41-54 (2007) (discussing the sufficiency of the processes by which non-governmental bodies develop governing standards); A. Michael Froomkin, [email protected]: Toward a Critical Theory of Cyberspace, 116 HARV. L. REv. 749, 809-10 (2003). 5. Baird, supra note 4, at 41-54. 6. See Comcast Corp. v. F.C.C., 579 F.3d 1 (D.C. Cir. 2009); Formal Complaint of Free Press & Public Knowledge Against Comcast Corporation for Secretly Degrading Peer- to-Peer Applications, Memorandum Opinion and Order, 23 F.C.C.R. 13028 (2008) [hereinafter Comcast Order]; see also Press Release, FCC, FCC Chairman Genachowski Statement on D.C. Circuit Oral Arguments in Comcast v. FCC (Jan. 8, 2010), availableat http:/Ahraunfoss.fcc.gov/edocspublic/attachmatch/DOC-295560A1 .pdf. 7. See generally Richard S. Whitt & Stephen J. Schultze, The New "Emergence Economics " of Innovation and Growth, and What It Means for Communications Policy, 7 J. TELECOMM. & HIGH TECH. L. 217 (2009). 8. Id. FEDERAL COMMUNICATIONS LAW JOURNAL [Vol. 62 of the broadband market.9 A competitive market, comprised of rational and enterprising network owners, broadband service providers, application developers, and casual users is far more efficient at producing and distributing information goods and services."' Policymakers, these theorists argue, should apply a light regulatory touch and let market actors privately organize the structure
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