How Shall the Net Be Governed?
David Post
American Lawyer, "Plugging In", October 1996

Summary by Devashish Bharuka
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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?
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. 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.

And just as events in cyberspace thus take place "nowhere," they also can be characterized as taking place everywhere at once. 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.  Even if we are convinced that new rules regarding electronic, one must at some point stop and ask: Who will implement these rules, and by what means?

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.  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. We can envision, perhaps, creation of a new international organization (along the lines of the World Trade Organization) to establish new rules.

But what is perhaps most interesting about the rise of cyberspace is the glimpse it gives us of another possibility, what might be called "decentralized, emergent law."  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. If one thinks about it in this way, the net is hardly a "lawless" place at all.

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.

However, this governance model does not, of course, "solve" all problems. Nor will existing sovereigns are not about to blithely relinquish their law-making prerogatives. But the Internet itself is testament to the enormous power of this rule-making model that may, in the end, prove to be irresistable.