Communications and Society Program Rethinking Boundaries in Cyberspace A Report of the Aspen Institute Internet Policy Project by Erez Kalir and Elliot E. Maxwell Rethinking Boundaries in Cyberspace A Report of the Aspen Institute Internet Policy Project by Erez Kalir and Elliot E. Maxwell Communications and Society Program Charles M. Firestone Executive Director Washington, DC 2002 To purchase additional copies of this report, please contact: The Aspen Institute Fulfillment Office P.O. Box 222 109 Houghton Lab Lane Queenstown, Maryland 21658 Phone: (410) 820-5338 Fax: (410) 827-9174 E-mail: [email protected] For all other inquiries, please contact: The Aspen Institute Communications and Society Program One Dupont Circle, N.W. Suite 700 Washington, DC 20036 Phone: (202) 736-5818 Fax: (202) 467-0790 Web address: www.aspeninstitute.org/c&s Charles M. Firestone Patricia K. Kelly Executive Director Assistant Director Copyright © 2002 by the Aspen Institute The Aspen Institute One Dupont Circle, NW Suite 700 Washington, DC 20036 Published in the United States of America in 2002 by the Aspen Institute All rights reserved Printed in the United States of America ISBN #0-89843-336-3 02-007 1142/CSP/02-BK Contents FOREWORD, Elliot E. Maxwell ..........................................................................v RETHINKING BOUNDARIES IN CYBERSPACE, Erez Kalir and Elliot E. Maxwell ......................................................................1 Prologue: Why a Conference on Internet Governance? .............................3 Trends and Challenges: Where We Are Now ..............................................7 Guiding Principles .....................................................................................13 Roles of Different Actors (I): Traditional Governments ........................................................................21 Roles of Different Actors (II): Alternative Governance Organizations ..................................................26 Roles of Different Actors (III): Corporations, Traditional NGOs, and Users .........................................30 Coming Full Circle: Three Specific Governance Challenges ...................35 Conclusion..................................................................................................41 APPENDIX List of Conference Participants .................................................................49 About the Authors......................................................................................51 The Aspen Institute Communications and Society Program..................53 Foreword The Aspen Institute’s Internet Policy Project has never lacked ambition. Under the leadership of David Johnson, one of the pioneers of cyberlaw, and then Andrew Shapiro, an influential commentator on Internet issues, the Project sponsored a series of small group meetings and workshops aimed at helping to create an intellectual framework for Internet policy. These meetings focused on the privatization of the domain name system, Internet privacy, the impact of the Internet on intellectual property rules, jurisdiction in cyberspace, the legal nature of e-commerce transactions, and the applicability of self-regulation and self-ordering to the resolution of Internet-related issues. It was an agenda fitting the fulsome ambitions for this new medium. The meetings resulted in significant contributions to the development of new approaches to Internet governance and policymaking. During the past year, the Project has focused on the next generation of Internet issues. In the early days of the Internet, many commentators saw it as a special place, “borderless” and free from government intervention, a locale run by and for its participants. Even in the first major Internet policy statement by the U.S. government in 1997—The Framework for Global Electronic Commerce—the emphasis was on private-sector leadership regarding Internet policy. But as the Internet has grown in visibility and importance—economically, socially, politically, and culturally— and as the number of international transactions utilizing the medium has exploded, it is no surprise that governments around the world have begun to give it greater scrutiny. In many cases governments have begun to pass laws and regulations seeking to control conduct and content on the Internet, within and beyond their borders. In the summer of 2001, 24 participants—leading entrepreneurs, technologists, academics, and policy advisors—took part in a three- day conference convened by the Project titled “Rethinking Boundaries in Cyberspace.” The conference agenda focused on the growth of government involvement in the Internet and, in particular, the implications of the exercise of extraterritorial reach by v vi RETHINKING BOUNDARIES IN CYBERSPACE governments in areas such as privacy, taxation, content regulation, and the sales of goods or services. A central question, given the global nature of the Internet, is who will make the rules governing these and other issues, and what values will underlie these rules. Will rules be made by local, national, or international authorities, by governmental bodies or by private-sector actors? Will the rules encourage or discourage the continued growth and development of the Internet? These questions have even greater resonance in the post–September 11th environment as governments focus on security issues and seek to extend their jurisdiction worldwide in order to battle terrorism. This question of who will make the rules is not new: It has been addressed in the context of the privatization of the domain name system. But the broad range of issues of interest to governments dramatically raises the stakes. The exercise of sovereignty by physically based states could result in new borders on the “borderless” Internet, policed using rapidly developing location- identifying technologies. Imposition of national policies, based on values that vary from country to country or locality to locality, raises the possibility of segmenting the global Internet into a series of regional, national, or even local data networks. But control of the Internet by governments was not the only issue of control raised at the meeting. The conference also recognized the rise in “private governance.”As Larry Lessig and others have pointed out, more and more “policy” decisions are being made by private players and are being embodied in the hardware and software that allow access to the Internet and provide its myriad applications. These policies found in “code” are part of a larger trend whereby private actors make decisions that in the “physical world” would be the province of governments. In some cases, governments have delegated responsibilities to private firms (as in the most recent Council of Europe Treaty), deferred to industry self-regulation, or allowed firms to exercise control based on the firms’ own view of competitive advantage. If private firms are going to be the ones who make the rules for the Internet, it is important to understand the values and criteria they will employ. At the same time, there is a technological arms race between those who seek to expand control and those who seek to minimize or Foreword vii escape it. Technologies to provide anonymity or promote privacy continue to develop. They offer mixed blessings: protecting private information or shielding dissidents from oppressive regimes and at the same time allowing bad actors to escape their just rewards. The conference examined one of these technologies—peer-to-peer computing—which undermines control because of the absence of any central point of authority. These technologies, coupled with the rise of new communities such as those of the instant messaging world, are simultaneously being praised for their ability to support collaboration and resource sharing and condemned for facilitating massive violations of copyright law. The debates over of control will surely continue. They must, because the stakes are so high. They involve the central characteristics of the Internet: the ability to communicate and collaborate with anyone online; to access staggering amounts of information hosted around the world; and to choose content, services, and features on the Net free from constraints built into the network itself. The consequences of choosing the wrong path are a dramatic decline in the political, social, and economic innovation made possible by the Internet. The conversations at the meeting were exceedingly rich. The following report is not a simple summary but an attempt to extract the most salient themes, provide a useful context in which to view them, and identify issues worthy of future dialogue. The rules under which these Aspen meetings take place encourage wide-ranging dialogue that focuses on underlying values—in this case those of communications, collaboration, and community. The Internet has broadened our sense of the possibilities in all of these areas. This publication reflects the general sense of the meeting, though each participant may not agree with every statement. Further, the opinions expressed are those of the authors and not of any current or former employer. By this report’s dissemination, we seek to engage a wider group in discussing how to ensure that the medium grows and flourishes. Acknowledgments I am pleased to acknowledge and thank our sponsors for their generous contributions to the success of the conference. The viii RETHINKING BOUNDARIES IN CYBERSPACE following entities sponsored the 2001 conference: Catenas, Citigroup,