Governmental entities

Lessig argued that those who assume that cyberspace is by its nature immune from centralized control are wrong, and that the actions of market participants and governmental entities threaten to turn virtual space into a highly regulated place, one where the behavior of individuals is even more tightly constrained than in real space. ” Julia D. Mahoney ‘Lawrence Lessig’s Dystopian Vision’ (2004) 90 Virginia Law Review, 2305 Critically review the proposition and the possible reasons why the internet is becoming increasingly regulated.

“Clearly, there is a need for governance, but that does not necessarily mean that it has to be done in the traditional way, for something that is so very different”[1]. When Koffi Annan spoke at the Global Forum on Internet Governance held on 2004, he puts forward the debate raised by the challenge of a public and private control of cyberspace in the context of the information society. This revolution is supposed to have an effect in our life by changing the way we communicate with each other through cyberspace.

This medium could be defined as a collection of infrastructures connected by networks, which enable communication and the storage of electronic information[2]. Here, the distinction between cyberspace and internet is not revelant, therefore both terms will be used interchangeably. Contrary to what was the main idea in the 1990’s, cyberspace is neither something neutral nor constant. As Professor Lawrence Lessig said : “The idea—and even the desire—that the Internet would remain unregulated is gone”[3].

So one has to question why cyberspace is not immune from a control of governmental and economic entities, and how it can be regulated. Firstly, I will demonstrate why the “so-called” nature of cyberspace is a misconception by siding with Lessig’s concept of “code”, and present what kind of of control is feasible in cyberspace. Next I will outline the increasing governance in internet, supported by two examples of control in the private domain in addition to the copyright which influences the everyday lives of web users.

According to Lessig, some people believe that cyberspace is and will still remain free from any regulation. This is what he denounces as “the fallacy of « is-ism »”[4] : because cyberspace worked once in a certain way doesn’t mean it will always have to work like that. To understand these fallacies, one has to review how cyberspace functions and how it can be controlled. It is inevitable that the complexity of cyberspace (or the internet will be encountered in the attempt to explain exactly what it is.

Yet the argument raised by those who think there can be no regulation of the internet is based on a simplified skeleton representing it as a “cloud” (differs from “cloud computing” which refers to a mean of stocking) mixing all the flux of information in the same place. But the cyberspace is not a uniform cloud with a single architecture built for one purpose. It is a global collective of spaces and layers, whether they are interconnected or not. These spaces could be a Facebook profile, a website like Ebay or even a sensitive area of the U. S. Department of Defense website.

The fact they are all part of cyberspace doesn’t mean one can access another, or in the same way. An example of two very different structures is the metaphor used by Martin C. Libicki to distinguish an information system between the castles, which “characterize a nation’s critical infrastructures” and the agoras, which “are the great consumer and political marketplaces of cyberspace”[5]. Of course, both have pros and cons, depending on the aim intended. The castles are significantly more regulated, and less permissive but safer, than the agoras which allow a greater communication and exchange capacity.

What makes all these places feasible is what Lessig calls the architecture of cyberspace : the code. The following definition was given by Lessig during a conference in Taipei in 1998[6] : By code, I simply mean the software and hardware that constitutes cyberspace as it is—the set of protocols, the set of rules, implemented, or codified, in the software of cyberspace itself, that determine how people interact, or exist, in this space. The idea is that the code represents for the cyberspace what a constitution represents for a nation-state.

It is the ensemble of rules making a place bearable by allowing or forbidding certain behavior. Contrary to the claim that we have to face technological determinism, the cyberspace is actually what some people decide it is : both a place of freedom; what it could be at the time of the “Net95”[7] and a highly regulated place; what it tends to be according to Lessig. Now that the point about the so-called unregulable nature of cyberspace is dismissed, we should focus on the regulation itself.

In that order, we have to identify the actors and the level and degree of control they can use. In cyberspace, the term governance is used rather than the word control to include the wide range of issues raised by the need of regulation. The cyberspace governance involves many features such as the kind of control (e. g. centralized, decentralized, self-regulation), the actors involved (e. g. international organizations, national governments, corporate entities and civil society) and the dimensions (e. g.

legal, economic, infrastructure, socio-cultural). The combination of these features constitutes a governance model. What is unique in cyberspace is that there is not solely one kind of governance, but many combinations working simultaneously with the possibility to be isolated from one another. The first approach concerns the distinction between centralized and decentralized structures of governance. In a centralized structure, one unique major institution (public or private) makes the decision, with the aim of power and visibility.

But a central instance can create a decentralized structure by a transfer of authority and responsibility in order to gain more efficiency and democracy in the decision making process. Since internet is a network of many networks around the world, sometimes autonomous, it should logically be governed in a decentralized way reflecting its structure. Also, the complexity of the cyberspace cannot be put under a single authority. On the other hand, centralized governance is more likely to succeed for developing countries with limited human and financial resources.