[governance] Internetistan, or the Bit Boat... a new approach to Internet governance!
Nick Ashton-Hart
nashton at ccianet.org
Sat Dec 8 06:27:43 EST 2012
Funny, I have been thinking of the Law of the Sea for a few weeks as an
interesting construct for the legal protection of the open flow of data.
It is true that there's a built environment to the Internet - but in
maritime law ships are also physical and registered with a state. However,
the space they travel through, beyond the territorial waters limit, is open
sea and by definition not owned by anyone.
If we used this construct to protect the flow of international data, that
might be a workable metaphor. The Law of the Sea embodied in UNCLOS is,
after all, largely simply a distillation of internationally-understood
principles about maritime law that go back to the Roman period.
We could do much worse than an international understanding that data, when
transiting any country between a source and destination in third countries,
was legally not actually 'in' the territory or subject to the laws of the
state it was transiting, but subject only to an international regime.
(Bertrand: these ideas are what I was speaking of when I told you at Baku I
had an idea for your jurisdiction project that might have potential).
FWIW: For those who are about to remind me, I am aware that the USG has yet
to ratify UNCLOS. It is clear that the current Administration is very much
in favour of doing so, however, as are many members of the legislative
branch).
--
Regards,
Nick Ashton-Hart
Geneva Representative
Computer & Communications Industry Assocation (CCIA)
Tel: +41 (22) 534 99 45
Fax: : +41 (22) 594-85-44
Mobile: +41 79 595 5468
USA DID: +1 (202) 640-5430
*Need to meet with me? Schedule the time that suits us both here:
http://meetme.so/nashton*
Sent from my one of my handheld thingies, please excuse linguistic mangling.
On 7 Dec 2012, at 16:23, "Dr. Alejandro Pisanty Baruch" <apisan at unam.mx>
wrote:
Jovan,
thanks for doing a pretty innovative thing here: discussing ideas.
Further, bringing a fresh approach and actual expertise.
My long-standing concern for analogies between Internet governance and the
laws of the sea is that the Internet is much more a built environment than
the sea (not that the sea is all natural and in fixed form forever, immune
to our contamination and our imagintion.)
So Internet governance refers not only to rules etc. to live on the
existing Internet, but also has to be useful as guidance in its expansion
and development. To abuse your analogy, it's not only about shipping,
fishing, and mining, but also about how to actually make the oceans of
tomorrow.
That brings you to points like: you can use Ostromian theory to understand
the tragedy of the commons in fisheries; but can you extend it to Internet
governance? What are the limitations? Can you address concerns from
liberals to socialists in a new framework without actually changing the
salinity or wanting to reverse the flow of the Humboldt current?
Any thoughts?
Yours,
Alejandro Pisanty
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------------------------------
*Desde:* governance-request at lists.igcaucus.org [
governance-request at lists.igcaucus.org] en nombre de Jovan Kurbalija [
jovank at diplomacy.edu]
*Enviado el:* viernes, 07 de diciembre de 2012 08:37
*Hasta:* governance at lists.igcaucus.org; McTim
*Asunto:* Re: [governance] Internetistan, or the Bit Boat... a new approach
to Internet governance!
Well, we have innovation! With the IGF in Bali, and ICANN on a cruise
ship, we may have 'beach or floating governance'. Internet governance could
be fun!
I like the metaphor of the ship since it implies our common destiny. We are
all passengers of ICANNia or ITUnia or...*?* Metaphors are also
useful to remove our tunnel vision and make us think more creatively. In
another metaphor, I hope that Internetistan will resist Absurdistan (here
is the map of this fast-growing
country<http://diplo.smugmug.com/ILLUSTRATIONS/Posters-1/4464706_T4FW6r#%21i=1104113260&k=2GsD8hV&lb=1&s=A>).
But back to the current reality. Unfortunately, the ICANN cruise ship won't
solve the problem of internationalisation. 'Open sea' refers only to
freedom of navigation. It does not deal with the status of the ship. All
relations on the ship are regulated by the national law of the ship's flag.
ICANNia has to be registered somewhere. One solution could be a flag of
convenience such as Liberia or Panama. What happens on the ICANNia is
regulated by national law, with no major differences from any other
land-based entity (company, organisation). Yes, ICANNia can sail in
whatever direction it wants to sail, but the decision must be made by the
captain according to the rules of the flag's state. Extrapolating from the
role of the captain on the ship, the ICANNia would look like military unit.
The cruise ship metaphor gets even more interesting when we consider
different classes of cabins, rescue operations, etc.
These thoughts have taken me back to Hugo Grotius's book *Mare
Liberum*that established the "open sea" concept four centuries ago as
opposed to
the idea of a *Mare Nostrum*. * *His relevance for our time is sobering. If
we replace 'sea' with 'Internet' we could have the next book on the
Internet. Grotius was a very interesting personality.* * Besides being one
of the first international lawyers, he was one of the founders of the
'natural law' school of thought. In addition, he wrote a lot about social
contract (before Rousseau, Locke, and others). As a matter of fact, his
social contract theory could be applicable to the Internet.
When it comes to the concept of open sea, Grotius had an interesting
interplay with the political masters of his era. He believed in open sea,
but Dutch and British authorities quickly realised the usefulness of his
doctrine. They had the biggest fleets and had ambitions to develop trade
and colonial empires. Grotius provided them with the necessary doctrine or
'political software'. However, Grotius always argued that 'open sea' needs
rules and principles in order to be 'open'. Although it was
counter-intuitive to the leaders of two growing maritime powers, he managed
to convince them that it was in their best interest to 'tame' their
comparative powers and ensure the sustainability of their empires beyond
the 17th century. Everything else has written the history, which proved
Grotius right. We can draw many parallels, with the necessary caution that
historical analogies should be handled with care.
While we are waiting for a new Grotius (or Godot), we should review how we
debate Internet governance issues. Grotius was a great scholar who mastered
the existing rules before he started changing them. We, on the other hand,
use well-defined and developed concepts in a relaxed way. A few examples...
As we saw, the frequently used metaphor of the open sea does not translate
to an open Internet. In many respects, it can lead in the opposite
direction (Internet Nostrum).
Another example is the role of states' responsibility in the Internet era.
This is a well-defined concept in international law. If we want states to
be responsible for whatever is originating in their territories (e.g.
cyber-attacks, botnets), we have to give them the tools to ensure their
responsibility (mainly state control, regulation, and surveillance). Most
writings on state responsibility start from the opposite assumption, i.e.
the limited role of the state. With all the creativity and imagination in
the world, we still cannot have it both ways.
The most topical example of the need for evidence-based policy is the case
of the Red Cross name/emblem at ICANN. There are very clear rules for the
protection of the Red Cross name/emblem that were adopted some 100 years
ago and have been followed, without reservation, on national and
international levels. ICANN was right in protecting the Red Cross name but
made the mistake of putting it together with organisations that do not
enjoy the same status (the International Olympic Committee).
Even if we want to change the rules in order to adjust to
the specificities of the Internet era (if any), we have first to master
them. I see here an important role for academic and civil society
communities. If we had advised ICANN to evaluate the Red Cross and IOC
submissions separately, we could have avoided a lot of policy confusion and
wasted time.
The GIGANET might consider the evidence-based policy research as the key
theme for the next meeting?
Regards, Jovan
On 12/6/12 3:31 PM, McTim wrote:
All,
If domiciling ICANN in a nation state is problematic, perhaps ICANN could
buy this cruise ship as a HQ:
http://cruiseship.homestead.com/Cruise-Ship.html
It would help solve the problem of internationalisation, be a permanent
host for ICANN meetings (2450 berths....saving hotel costs for all) and
generate revenue intersessionally. It's a 3-fer, plus it's a snip @~ 300
million USD!!
--
Cheers,
McTim
"A name indicates what we seek. An address indicates where it is. A route
indicates how we get there." Jon Postel
--
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