'Governance of controversial Internet content in the European Union.'
At this point it is worth assessing these policies in the light of the questions raised about governance in the Introduction and in the literature review. To what extent can European Union policy on Internet content be said to bear out the paradigm of 'network governance' described by Reidenberg and others? That paradigm may be summarised as follows. The role of the state is circumscribed in terms of its traditional exclusive sovereignty and regulatory powers in a distinct territory. However the state retains crucial degree of manoeuvring room. In Walker's words 'the fragmentary state can respond to challenges by more imaginative forms of governance'. The state can maintain 'crucial functions in terms of managing the political linkages in governance'. The role of the sate is not exclusive; it 'may need further sustenance by the activation of more varied levels of power at second hand'. In Reidenberg's view the state becomes just one element in a 'complex mix of rule-makers'(1997:96):
On the GII governance can no longer be viewed as an exercise in state edict. The relationships among the different participants ...become interactive. States have direct interests ...The Private Sector has a crucial role ...Technologists have a pivotal position ...and the GII empowers citizens to establish rules of their own. (1997: 926)
In this view of governance, policy-making among the different interests referred to is intertwined. It cannot ignore technological concerns and technologically-driven decision making. How are these views borne out in the policies and the policy-making mechanisms we have reviewed? In general terms we have seen that the policy making process in the European Union has been specifically structured with a view to including the commercial and consumer groups involved, through the constitution of the Working Party on illegal and harmful content. In the context of substantive policy on illegal content, the advocacy of a self regulation system involves the key industry players in a central way, through determining codes of conduct. This may be backed up by legislation making intermediaries liable, to different degrees, for the content they carry. However, as I have pointed out above, liability is an issue on which the Union has yet to reach closure. This bears out Reidenberg's suggestion of a 'movement toward a system of state provided incentives through encouragement, as well as allocation of liability, that will induce networks themselves to adopt desirable public policies' (1996, 930). According to this view the allocation of liability might evolve as a policy instrument to promote network self regulation. Beyond the involvement of intermediaries, the advocacy of hotlines and the general promotion of user awareness (the Commission has set up its own awareness site) involves the wider citizenry in enforcement of norms.
In the area of harmful content, that is, restricting the access of minors to adult content, the new, wider, concept of governance is even more applicable. Traditional gate keeping mechanisms are rendered inoperable by the technological infrastructure of the new medium, yet it is to technology that the Union has turned in its search for policy instruments. This has involved close alliances with the industry in promoting the PICS protocol as a global standard. The salience of this point is reinforced by the close historical relationship which the European Commission has built with the World Wide Web Consortium (W3C). This is an international non-profit making association of academics, public interest groups and computer companies which promotes standards and inetroperability on the World Wide Web, and also looks at the social consequences of technology (World Wide Web Consortium, 1997). Its key personnel were instrumental in the original development of the Hypertext Transfer Protocol on which the web is based. The Consortium is backed by 39 global computer and communications companies (Akdeniz 1996,1997). Significantly, the European Commission played a role in the establishment of the W3C (Communication) which in turn has been represented on the Commission's Working Party on illegal and harmful content (parts). The Commission is also involved with the W3C in other areas of information policy, as instanced in the WEBCORE project, 'an action undertaken to secure global interoperability and European competitiveness in the Global Information Society' (Commission, 1996?). This confirms Reidenberg's view:
Executive and legislative fora lose a degree of relevance to technical standards organisations. Standards decisions affect fundamental public concerns and are no longer technical rules of purely commercial interest (Reidenberg, 1996: 927)
Reidenberg instances other examples which reflect 'the critical new instrumentality of standards-setting', including encryption standards, as outlined above. PICS is technical standardisation as policy instrument par excellence. The broadness of the range of the alliances involved is underlined by the fact that arch rivals Netscape and Microsoft, who together account for over 95% of the web browser market have both adopted the new protocol. CompuServe, a service and content provider which more than any other has contested heavy handed regulation has announced its support for PICS and now rates its own content using RSACi. However many obstacles must be overcome before the W3C attains its goal of having PICS as a global standard. According to Akdeniz (1997), the consortium expected 80 per cent of information on the Internet to be rated by the end of 1997. The reality, as we have seen, is that rating is a minority enterprise at present. Other problems may also arise. While PICS is often taken to mean the RSACi system, it is in reality a platform that can support any rule based rating system. To this extent PICS is value-free. The idea of using a distinct 'European' rating has been mooted by the Commission (1996a), but RSACi seems to have a head start in the race to become the default system. IT is RSACi which has been incorporated into browsers. One may apply a market rationale to the way in which one technical standard comes to dominate exclusively (Gates, 1996). This has been the case for instance with VHS versus Betamax video systems, numerous audio standards, and the 'QWERTY' keyboard I am using to write this. Thus, in advocating PICS, the European Union may be pushing a particular (non value free) rating system by default. It is also worth noting RSACi is a proprietary system. While the RSAC is a non profit making organisation charges for those who wish to rate with its system are envisaged to be in place soon. I have already related in chapter 4 how the details of rating are likely to be presented to the council of Ministers as fait accompli. This all raises issues of accountability, for technical standardisation obscures the moral issues at stake. As Reidenberg notes: ' ..citizen interests are either weakly or indirectly represented in setting standards. In the European context, the involvement is indirect, but real, in the shape of the Commission's involvement with the W3C.
The Commission also shows itself to be keenly aware of the potential of technical standardisation as a policy instrument in the context of illegal content:
Attention should be paid to the process by which technical standards for digital communication are adopted since the design of such standards may affect the possibilities of law-enforcement bodies to track criminal activities. (Commission, 1996c)
Another potential, though not explored by the Commission, is inherent in the PICS protocol. While PICS allows filtering of content by the end user, it also enables filtering at the nexus of the service provider. This may become a relevant possibility if rated content becomes predominant on the World Wide Web. This would allow PICS to go beyond the goal of restricting the access of minors to adult content, and block public access in general to certain sites.
It is hoped that the foregoing chapters illustrate the limits of sub-global approaches to dealing with controversial Internet content. However any project of instituting instruments of governance on a global scale poses serious challenges. The need for international co-operation is asserted in many of the European Union's policy statements, yet there is a lack of consensus as to which international forum or fora would be appropriate to such an enterprise. The Green Paper (Commission, 1996b) asks the question for us:
What should the priorities be at European level and at international level? In particular, should one give priority to developing solutions at European Union level and then promoting them at international level or should this be done in parallel? What are the most appropriate international fora for international co-operation (G7, OECD, ITU [International Telecommunications union], WTO, UN or bilateral relations) ? How should this international co-operation be formalised?
Both the Commission's Communication and the Parliaments Resolution offer a similar list of international organisations in the search for new international legal instruments. The list of organisations in the question above is interesting if we remember the role of economic interests in this policy process. The first two, the G7 and the OECD are organisations of the dominant powers of global capitalism, primarily concerned with furthering economic growth. The World Trade Organisation (WTO) is also specifically concerned with economic issues, namely the regulation of free trade. The International Telecommunications Union (ITU) is concerned with technical standards, which, in the information age, are an issue of key economic interest. Only the UN has a brief which extends to human, civil and political rights, and moreover, has a make up that is in some sense global, and possesses institutions, albeit limited, which can provide a discourse convivial to the provision of accountability to the world's citizens. The Commission's Legal Advisory Board sounds a note of caution in the face of approaches which economic and technical issues and calls for a choice of forum more clearly focused on the rights of citizens:
The progress already achieved in Europe in building a consensus must be built upon in the broader international context. A note of caution, however, seems to be warranted. Similarly to the debate on privacy protection, international discussions should bear in mind that an issue is being discussed which although having obvious economic implications is mainly an issue of the effectiveness of human rights, cultural values and balances between state authority and citizens' rights and interactions among the rights of citizens. Not all international fora lend themselves equally well to adequately discussing such issues. (Legal Advisory Board, 1997, 9)
However, if we consider the question of implementation and enforcement, there is perhaps some case to be made for organisations with an economic purview. Since it has been argued above that economic interests are crucial in determining the policies of governments, the sanctions imposed by, say, the WTO may prove an incentive for nations to comply with any international accord. Conor O' Cleary (1996) postulates a link between China's regulation of the Internet - in this case towards liberalisation - with such economic imperatives.
The action [deregulation of the Internet] coincides with new thinking in Beijing on making the economy more open to strengthen China's case for joining the World Trade Organisation. At the weekend, the official media published details of new trade initiatives as part of its drive for WTO entry.
The question as to which forum is an appropriate one in which to seek international accord remains open in all of the European Union's key policy statements. The Parliaments Report (Report, point 31) urges avoidance of duplication of efforts. A lack of closure on the issue will surely have a diffusive effect.
Any international agreement faces the challenge of the tendency towards a lowest common denominator, a process already noted in the European context. The recent US Supreme Court decision ruling the CDA unconstitutional points to an important limiting factor. The Freedom of speech provisions of the American constitution's First Amendment are less qualified than those of the European Convention on Human Rights as set out in Chapter 3 above. With the US being such a strong political power and still the location of the 'core' of the Internet, this is likely to have a large impact on the unfolding search for international accord.
As I argued above, the Internet represents one element in the growing phenomenon of globalisation. Increased economic interdependencies, global ecological crisis and the GII are creating the need for new forms of governance which can encompass a large portion of the planet's polities. It has been argued above that responses to regulatory problems posed by the Internet are yielding a new form of governance. It is worth posing the question as to whether in addition to a new definition of governance, a new concept of statehood will also be needed for the future. The traditional equation of statehood with the monopoly of coercive power over a distinct territory (Weber, Elias) reaches its own limits in an era of increasingly complex global governance. For instance, sovereignty in the economic arena, it could be argued, is actually shared with powers beyond the national realm, and more specifically with international monetary institutions. In areas of civil conflict, there has been an increasing role for internationally sponsored organisations, backed up, of course, by the coercive powers of hegemonic nations. However the development of global institutions remains limited in certain important respects and there are no indications of moves toward the type of relatively deep sovereignty sharing such as we have seen in the European Union. And crucially, the concept of global civil rights is just that, a concept. There is no sign of the a development emulating the faltering, yet real, expansion of European citizenship. Conventions are agreed between nations and it is up to nations to comply and enforce them.
The realisation of stronger global institutions would require such changes in political identity as can only happen through major shifts in cultural world views (Dunne, 1997). Ironically, the GII may contribute to just such a shift. We have seen how Kedsie's argument (1996, 1997) that the Internet is contributing to the development of a global civil society. This echoes the insights of Jürgen Habermas who points to the development of a world-wide communicative arena:
State citizenship and world citizenship form a continuum which already shows itself, at least, in outline form. (Habermas, 1992).
The Internet may represent a renovation of Habermas's 'public sphere'(1991) and its expansion beyond traditional boundaries.
Ken Wilber (1995) makes a complex argument in which global federation and a new informational 'base' to society are inherently linked, the latter making the pre-requisite shift in world-views possible. The argument for geo-political evolution towards global federation is supported by the process sociology (Elias, 1982; Mennell, 1992). Norbert Elias' survey (1982) of the development of statehood in a long-term historical context suggests a momentum towards ever larger units of territories controlled by a single coercive institution, and ever larger 'survival units' culminating in some form of global state. While it is, no doubt, early to speculate, it is worth considering whether the developments I have been describing, and other recent developments in geo-politics conform to this pattern.
A wider historical context also leads, in my view, to the interesting issues involved in state development. In the older nation states of Europe a pattern may be discerned of a widening remit for the state, expanding from core areas of sovereignty (defence, coercion) into the spheres of civil, and then political and welfare rights. However, the development of supranational statehood in the European Union does not yet conform to this pattern (Streeck and Schmitter, 1992:152-152). A minimalist liberal state would seem a better description of the European polity. This combination of economic integration and deregulation with a high level of civil rights is worth noting in the context of this study. It is interesting to speculate whether or not the European Union is an indicative pattern for supranational sovereignty sharing and predictive of global developments in issues both of economy and rights.
In the development of modes of governance for the Internet technical, political and economic interests are enmeshed. In cyberspace the traditional congruence of functionality, identity and territory (Laffan, 1996) which has rendered the state so potent meets an awesome challenge. We can only begin to speculate upon the ultimate implications of this meeting.
Daniel
Dunne.com