Who Controls the Internet? Illusions of a Borderless World

Citation

Goldsmith, J. (2007), "Who Controls the Internet? Illusions of a Borderless World", Strategic Direction, Vol. 23 No. 11. https://doi.org/10.1108/sd.2007.05623kae.001

Who Controls the Internet? Illusions of a Borderless World

Who Controls the Internet? Illusions of a Borderless World

Edited by Jack Goldsmith, Tim Wu, Oxford University Press, Oxford and New York, NY, 2006Reviewer: Stuart Hannabuss, Aberdeen Business School, Aberdeen, Scotland, UK

The internet is free, the internet is controlled, the internet is controlling. Dilemmas in what seems at first a simple case. It started as revolutionary force expecting to be self-governing and even to challenge rule by nation-states and international law. Goldsmith (Harvard Law School) and Wu (Columbia Law School) ask whether this idea of a borderless internet-driven world was and remains a mere illusion. They analyze the evidence over the last decade and argue that what is borderless is in fact highly bordered – shaped by governments, international law, and cultural and political factors – and that, by arguing that, other theses like globalization themselves become problematic and questionable. This is a perceptive and well-argued and topical book in a crowded field, with its own challenging viewpoint, and very much a work to add to any self-respecting collection of material on internet growth and law, in academic and professional settings.

They take an insider view by presenting internet issues through key people involved – like Wang of Yahoo! and Vinton Cerf, Zennstrom of Kazaa, Omidyar of eBay and Gutnick (the case in Australia that asked US servers to behave). This could degenerate into chatty background but never does, because the authors set these people within the coherent historical context of the internet since the early 1990s until today, drawing out industrial and commercial, political and legal issues that shaped powerplay and debate. This is done to sustain and underwrite their thesis that the internet is, in fact, highly bordered. Yahoo!’s Nazi memorabilia case in France in 2000 gets things started (government won out), internet self-governance over domain names became inexorably institutionalized when the US government and then ICANN (Internet Corporation for Assigned Names and Numbers), to name but one, took it over (amid ongoing controversy), and Google agreed to filter and block and obey the Chinese government (a sharp chapter on this last issue).

The argument develops persuasively: the engineers of the Internet Engineering Task Force (1986 onwards) could not have expected to remain in control; nations want their own language (think of Iceland), consumers want their websites to reflect local interests (weather, traffic, shopping); and nation-states expect to intervene over matters of internet content and, following international law, protect their communities on piracy and privacy, hate speech and defamation and e-commerce. In an incisive section on eBay, the authors argue that fraud compelled the internet to look to the protection of the rule of law “problems with fraud demonstrate its most obvious need for the coercive power of government”. After babies were listed for sale and scams took place, eBay tightened up its legal arrangements and looked to mediation services as beyond those to the law. Similarly, file-sharing through Napster and Gnutella, Kazaa and others seems to demonstrate that, for all the effects of consumerism (think of Apple’s iTunes, which economically at least seemed to resolve the copyright balancing act), only ultimately the rule of law (and the teasing dynamic between the law and technological innovation) could provide a tribunal strong enough to sort things out. So much for internet self-governance.

This is where the argument starts begging questions – by equating the rule of law with government intervention – though it concedes that such interventions might be good (protections for trademarks and contracts) or less good (over-protection of vested interests like copyright, censorship on the Chinese model, or appearing to succumb to economic lobbying from big interests in domain names). By fusing the rule of law with the effect of government, the authors really cannot lose. Even so, the case is well made: that controls over ISPs and content on drugs and gambling and pornography are very much a sign of government (national or jurisdictional) control and cross-national concern (Yahoo! and Gutnick are two cases of many here). It opens up practical issues of internet governance (who is to do it – the Internet Society, the World Trade Organization, the International Telecommunications Union, the World Intellectual Property Organization, the nation-state?) as well as related issues like the effects of intervention, the extent to which the internet can and should remain “free” (whatever that means), internet governance in the context of international law (is the internet like air, the sea, and outer space?), and internet management in a globalized world (for example, can any legal issue be made susceptible to any territorial law?).

Even when we look at bodies that purport or aspire to “govern” the internet, like ICANN or WIPO, or at the effectiveness with which territorial control operates over piracy and privacy, copyright and pornography and the rest, we are left with doubts about international consensus. Who Controls the Internet? examines the way in which the internet has grown up since its dreams of freedom, suggests that, human nature being what it is (Hobbesian rather than Lockean), the internet reflects the messy compromises between global and local, legal and fair that we find in everything else, gets us to revisit the notion of territoriality and jurisdictional control, highlights how local needs made the internet glocal (local and global) rather than global, optimistically queries crude dichotomies like anarchy and despotism, and tells a pointed narrative about geography-centricity in an apparently borderless world. Being of its time, the book has an active shelf-life of about two-three years, but the arguments it raises about internet governance deserve to last a lot longer than that.

This review was originally published in Library Review, Volume 56 Number 2, 2007, pp. 162-4.