Dealing with the New Frontier: The Information Age, the Internet and International Law

by Howard Fienberg

March 24, 1994 (for Marc Neufeld, PO320)

Over the last fifty years, the people of the developed world have begun to cross into a landscape unlike any which humanity has experienced before. It is a region without physical shape or form. It exists like a standing wave, in the vast web of our electronic communications systems.... William Gibson called this Platonic realm "Cyberspace"... (Kapor 1)

Every day, much of the world interacts in a digital format. People use their automated bank teller machines, and charge purchases to a piece of plastic without much knowledge of why or how it works, as long as it continues to function. Thousands of people connect to the global web of interconnected computers called the Internet, and perform numerous tasks, including communication, without ever meeting their peers or even hearing their voice. We are living in the Information Age, and, as such, digital interaction is more common than any other communication in much of the world, as the fastest and most wide-reaching form of communication.

But that is not all that is to be offered. This essay will first explain what the Internet is, its history, and how it works. From that point will it be related to international law, and related cases. In conclusion, the general implications of digital international relations will be examined in a legal context.

History of the Internet

What has been dubbed the Internet was begun as an experiment of the US military. The Defense Department, in the 1970's, created a network called the ARPAnet, which was intended as an experiment in building networks that could withstand "partial outages." (Krol 11) It was based on the concept of a parallel circuit, so that the network could continue to function if several of its parts were downed because none of the computers connected was an essential element; the Internet has no master computer. In a series circuit, if something goes wrong with any part of the circuit, the entire circuit ceases to function. In the parallel model, each part is connected individually, so that parts can be added, taken away, destroyed, etc., and the network will still function as a whole, without interruption. What was feared was that, in the case of a bomb attack, that their entire communications network would be wiped out in a single blow. As well, a simplistic system of operation was conceived whereby all the connected computer could communicate with each other as equals. Communications would be sent in Internet Protocol packets, and would be sent to the nearest computer, which would pass it on, until the packet reached its proper address.

The beauty of the ARPAnet model was a secure communications network that could withstand most any catastrophe. Of course, the greatest catastrophe faced today is the overloading of the system with thousands of users and sites, making the network run slowly. But there are efforts being made on a continual basis to upgrade the power and speed of the Internet.

Ethernet local area networks and workstations became popular in the nineteen-eighties, and soon people wanted to connect their entire networks to the ARPAnet. The National Science Foundation created its NSFNET in the late 1980's by connecting five supercomputers together; it then opened them to use and connection by regional networks of schools and research facilities. Each region was connected to a supercomputer at one point which made it accessible to the entire network.

The greatest result of the NSFNET was the opening of opportunities to more people of what the Internet has to offer. Originally, the Internet was available only to computer scientists and government employees and contractors; the NSFNET changed that. Universities were funded so that they could all connect to the network, as long as that access would be shared. Now, with most every university on-line, access is being sought for even primary and secondary schools.

Governing and Controlling the Internet

There is no "single authority figure for the Internet as a whole." (13) It may in fact be a true democracy, in digital format. The Internet Society is the closest that exists to any grand authority. The Society appoints a council of volunteers called the Internet Architecture Board (IAB). The IAB meets at regular intervals to allocate resources on the Internet and to examine and approve standards for operation. (14)

Another governing body is the Internet Engineering Task Force (IETF). The IETF meets to consider operational and technical problems on the Internet; if the problems are serious enough, working groups are set up to further investigate those particular problems. Their results would then be submitted back to the IETF, from which they would become either voluntarily adopted, or sent to the IAB to be considered as standards.

In general, connection to the network means that one accepts its general workings and functions. If one has a problem with them, one could take it to the two previously mentioned groups, or several others. But, if one does not behave properly on the Internet, one's connection might be revoked or suspended. An entire way of interacting over the Internet, and the manners involved, has evolved, and become known as netiquette.

Approaching the Internet from a legal standpoint

It is difficult to conceptualize a proper way of dealing with the Internet from the standpoint of international law because it is not easily definable. It is a network spanning the entire globe, and it is intangible. It's entire limits are not known; few know how many sites are actually connected on any given date, because the network is in a constant state of flux. The Internet exists beyond our normal realm of thought, in what is called cyberspace. There are few laws in existence relegating the Internet, although various parties have recently been attempting to use existing law to regulate activity within it.

There are several comparable examples in international law, including outer space and the high seas. The Internet can be compared to both of these, and one can thus attempt to conceive a way of dealing with cases of Internet jurisdiction.

Outer space is dealt with as a common resource in international law. The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Uses of Outer Space, Including the Moon and Other Celestial Bodies declared a basic principle in outer space jurisdiction that space was "the province of all mankind," and should be explored and used "for the benefit and in the interests of all countries" whether or not they have access to it. (Levi 120) Ten years later, an agreement guaranteed all nations equal access to the use of the geostatic orbit. This was to aid the developing nations, which do not yet have the resources to place satellites into orbit, by leaving them their own areas to exploit whenever they manage to launch satellites.

This concept of equal access is also utilized when dealing with the high seas. No state has sovereignty over the high seas, but all states share mutual jurisdiction. The 1958 Convention on the High Seas says that they include "all parts of the sea that are not included in the territorial sea or internal waters of a state." (Levi 124) But this definition is under strain, challenged by such notions as exclusive economic zones like Newfoundland's fishing zone. A 1965 treaty deals with landlocked nations, and their rights to the high seas, by requiring them to deal for access with the state between them and the seas. However, all nations are granted their rights upon the high seas, regardless of whether or not they are contiguous on the particular body of water, or any at all.

The concept of both outer space and the high seas as "the common heritage of mankind" is worth noting. The phrase was coined at the 1967 World Peace Through Law conference. International agreements and declarations have stated that they are open to the equal use of all. Sovereignty, which is an inherent right of states as conceived in the Montevideo convention, includes the right to the use of international collective goods, under which designation outer space and the high seas are included.

The "common heritage of mankind" concept is an ideological approach to international cooperation. It recognizes certain international legal obligations of all states. It is often invoked in conferences on the high seas and especially the environment. These goods belong to all states, and as such, all states must have mutual jurisdiction.

The question to be faced is now whether the Internet falls under such a heading. The Internet could be considered an international collective good, and also be part of the "common heritage of mankind." It allows for the sharing and collection of information and research which could benefit all peoples. The data available could be utilized by developing nations to further their own development, which would be in the interest of all nations. It represents a high speed route to uplifting the developing world technologically, and in many other ways. The knowledge floating across the Internet may hold the cure for some problem in a remote nation that would not normally have access to such information.

This is what has led the Internet to be dubbed by some as an Infobahn, and can be visualized as an international highway. However, the path is not clear on the Internet; various state governments, particularly that of the United States, wish to play the roles of traffic cops, monitoring or restricting usage of the Internet. As well, the Internet does not reach everywhere, and most of the developing world is not connected, leaving them stuck on an information back road.

Policing the Internet is a daunting task. Most of that which does go on is done on a small-scale and autonomous level, in the absence of any true authority, but the United States has been prominent in attempting to do so on its own. In April of 1993, the US government released its Clipper proposal, which was brought before a Congressional sub-committee for hearings. The proposal was to require the encryption produced by a chip called the Clipper to become the standard for the computer and telecommunications industry. What caused an uproar in the telecommunications arena, and particularly among users of the Internet, was the inclusion of a backdoor available to the government included on all the chips. This backdoor was to be utilized only in the name of such a specific, and infrequent, situation as that of urgent "national security." In order for the Clipper proposal to have its desired effects, the whole of the telecommunications industry, almost on a global scale, would have to implement it, because clipper-encrypted communications can only be decrypted by another clipper-enabled device. Had the US government succeeded in passing the Clipper proposal into law, which they did not, the whole of the industry would have had to comply eventually, in order to continue dealing with the government.

The proposal failed, but the questions it raises go beyond simple municipal dealings. The implementation would have restricted access to, or granted the US special privileges on, the Internet. The ability to eavesdrop on domestic communications is certainly part of a pressing debate of domestic law, but on an international scale, it would be a definite breach of jurisdiction; this, of course, assumes that the Internet is in fact an international collective good. The US disagrees with this view, feeling that it has primary jurisdiction on the Internet, and this issue will be brought up later.

The Internet is not a natural resource, it is a man-made one. As well, it costs to use it. This cost is more than a simple fee to patch into the network, but it consists of the expense of laying fiber-optic cables, the purchase of sophisticated modern computing hardware, and a generally decent telecommunications infrastructure. The developing world has very little usable infrastructure, and not enough money available to spend on fancy fiber-optics and computers.

In the modern era, information has become a commodity. The former chairman of City Bank was quoted as saying that "information is capital." Marx would certainly have had an interesting time dealing with this new brand of information-owning capitalists. It has been concluded that "communications and information is the central resource in developed capitalist countries and the key to economic growth in the Third World." (Mosco 177)

If this is so, then one can conclude that information should either be shared, as an international collective good, or hoarded, in typical capitalist fashion, and bought and sold on the market. The Internet is based more on the first principle, that the information is there to be shared, and is a common resource for all. Persons can attempt to be roadhogs, and hoard information, but the set-up of the Internet usually precludes such behavior.

It has been argued that the US has primary jurisdiction on the Internet. One argument in favor of this position is that the NSF, an American organization, was the founder of the network, and the greater Internet is all based on the NSFNET. The other argument is that the US provides most of the funding for the maintenance of the Internet, and that it has paid for its jurisdiction. The first argument has little weight, as the Internet is now inclusive of many of the world's networks, and the base one has very little to do with any other. The latter argument is persuasive, depending on how one looks at the Internet, whether it is considered an international collective good, or not.

If it is not an internationally collective god, then the US has primary jurisdiction over the networks, because the US does in fact subsidize a good portion of the Internet. However, this argument is a hollow one, as shown when it is compared with US demands in the UN. The US administration has, at times, proposed that the General Assembly of the UN be reconstituted to represent nations by the amount that they contribute to the organization. This would obviously bring the most representative seats to the US, and they would no longer have the problem of finding the developing world, a bloc with far more votes in the GA than the Western powers, voting down all their proposals. This proposal has been consistently rejected, with reference to the US' already unfair advantage at the UN of having a permanent veto on the Security Council. The point is that the US is not the focal point of the world, and does not, not should it be able to, run the international community. The US is also not the focus on the Internet any longer, and while it may subsidize it now, funding responsibilities will be privatized very shortly, eliminating any undue influence that the US government now holds.

The Future of Digital International Relations

As the Internet shows us, the Information Age is here, but humanity is faced with the problem of how to deal with it. There are multiple options, ranging from offering help to the developing world to connect to the Internet to cutting subsidies of the Internet due to its support of other nations' use of what might be considered American resources.

The tradition of a global civil society, as envisioned by the Italian Marxist Antonio Gramscii, might be applicable to our current situation. Humanity is linked by a complex web of interdependence, and it is not hard to find instances, particularly in regards to technology, where the developing world is being systematically discriminated against.

The world system may be a liberal international economic order, but it seems that the time has come for some flexibility in that respect, and that the developed world must help its southern neighbors to lift themselves to the higher plane of digital existence, so that all mankind may share in the benefits of "the common heritage of mankind," the Internet. With time, the ius cogens may be that access to it is guaranteed, an inherent right of sovereign states that is recognized by the world community.

Works Cited

Kapor, Mitchell and John Perry Barlow. "Across the Electronic Frontier." Washington, DC: Electronic Frontier Foundation, 1990.
Krol, Ed. The Whole Internet: User's Guide and Catalog . Sebastopol, CA: O'Reilly and Associates, Inc., 1992.
Levi, Werner. Contemporary International Law: A Concise Introduction . 2nd Edition. Boulder, Colorado: Westview Press, Inc., 1991.
Mosco, Vincent. The Pay-Per Society . Norwood, New Jersey: Ablex Publishing Company, 1989.

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