United and Undivided? How to save the Internet from national territorialisation

Internet governance has become a frequent topic for discussion, especially in Russia. Since September of 2014, Russia has hosted two major internal events dedicated to this topic: a Security Council meeting in September, dedicated to the possibility that Russia could be cut off from the Internet, and the Russian Internet Governance Forum in April, the main theme of which was the principle of national sovereignty over the Internet. To avoid states breaking the Internet into pieces in pursuit of their own interests, it would be best for the global community to set up an international agreement similar to those regulating the use of the open seas, space, and Antarctica.

This commentary was written following the seminar Global Internet Governance: Key Topics and Expectations in 2015, held recently in PIR Centre under the auspices of the Institute of Contemporary International Studies of the Diplomatic Academy of the Ministry of Foreign Affairs of Russia. Additional information and materials are available here.

Why govern the Internet?

The answer to this question goes from the philosophical to the deadly serious upon deeper consideration. The level of Internet penetration, especially within the public offices, is so high that he who governs Internet, governs the world. However, there is a problem; no one knows exactly where attempts to govern the Internet will lead.

Let me illustrate this with the example of VISA and MasterCard systems in Russia in 2014. As a result of Western sanctions, they stated they would be forced to discontinue their services for several sanctioned Russian banks. I participated in the drafting of the Law on the national payment system from 2007-2012. At this time, any attempt to create a national payment system to compete with the international ones fell apart with the argument “why reinvent the wheel, we already have Visa and MasterCard.” And yet we now have a different reality: Visa and MasterCard can only continue operating in Russia so long as they do not exclude sanctioned Russian banks from their services. Besides that, Russia has moved to create a national electronic card payment system designed to compete with existing credit cards.

The Internet faces the same dilemma. For a long time, states did not use Internet technologies for a significant portion of their day-to-day work. For Russia, this period ended in 2010. Since then, the overwhelming introduction of e-government technologies has significantly raised public-sector dependence on the Internet. As a result, the issue of Internet governance within national boundaries has turned into an issue of life and death at the national level.

Why specifically mention governance within national boundaries? At the moment state sovereignty is unambiguously superior to the Internet within a country. States remain states. No one has abolished the principle of sovereign equality contained within both the Charter of the United Nations and national constitutions.

But how strongly and unequivocally would be a government answer the question: should we govern the Internet?

On one hand, countries will obviously answer: “yes, we should govern the Internet.” This is because:

• All government work relies extensively upon the Internet, both internally and externally,
• From the time of the Internet’s creation, no internal control mechanisms have been invented (leaving aside loud declarations which rarely amount to anything) which protect users from crime, the spread of illegal information, or simply from the imposition of unwanted information or views on them,
• The Internet and information technologies are becoming a more and more important part of national economies.

Taking into account these opinions, the Internet is yet another area where a government must provide order and support the rule of law. In order to achieve these goals, every state must demarcate, consider, and protect the Internet within its own national borders.

Why is the Internet not yet divided?

On the other hand, it is not that simple. The Internet has another, more global, side. In middle of the last century, humanity faced the same question of to divide or not to divide, but at that time we were talking about open seas, aviation, space, and the Antarctic. National bodies resolved not to divide these into sections but rather to create a deterrence to prohibit any single country from claiming ownership over a global good.

Currently, the Internet is not divided because its value rests in its global nature. This is easily visualised via the example of a lap pool. A community swimming pool is most effective when used communally by all visitors. Nevertheless, this effectiveness would quickly collapse if several users reserved their lap lanes. Upon seeing the first reservations, others would immediately follow suit, being scared they would be left without space to swim if they did not act.

Internet governance is currently precariously balanced. The administration of the USA knows it governs the Internet and knows other governments realise this. However, any attempt to impose this control would lead to the Internet’s immediate segmentation, leaving the USA in control of the Internet only within its own national segment. Are the steps taken by Washington sufficient to avoid the division of the Internet? Evidently, no.

How regulate the Internet?

First, we have to recognise that the relationships and needs of the Internet are in a superposition state. They are neither solely interstate nor domestic. Thus, we can only determine whose interests intersect a specific problem after we determine the effects of the problem on a case-by-case basis. This requires a new governing approach (other that material law or principles of conflicts of laws), which would allow us to take into account different sets of national legislation that touch upon the Internet. In this case, the division into national segments on infrastructure level will not create divisions between countries on a content level.

Second, we need a system of checks and balances not mutually assured destruction. This system must demonstrate to each state that any attempt to control the global Internet outside of its borders will lead only to the removal of this state from the global network. This must apply to every state without exception.

Third, the legal mechanisms could also support limitations that are actually built into the actual technologies of the Internet themselves, also known as lex informatica. Whatever we say about Internet decentralization now, the Internet still has single governance centre. This is not a problem for something like a local or national telecom network. However, if we are talking about something with global value, we must remember that the Earth is a full sphere and it does not have a single point on its surface that everyone agrees is the centre.

In order to satisfy all sides, we require a multilateral process. Ideally, it should be a multilateral convention and an international governing body. The Internet is no less deserving of these methods than the open seas.

 

About the author:

Nikolai Dmitrik, Doctor of Juridicial Sciences, is the Director of Legal Consulting at ParkMedia Consulting. From 2006-2012 Dr. Dmitrik served within the Legal Department of the Ministry of Communications and Mass Media of the Russian Federation. He participated in the creation of legislation in the sphere of personal data, electronic signatures, e-governance services, and access to information. He is the author more than 40 studies and scientific papers in the field of ICT regulation.