Who Controls the Internet? A conversation with Jack Goldsmith

Saturday, July 1, 2006
Jack Goldsmith

The Internet is still relatively young, and its borderless nature raises some interesting legal questions. For example, French law forbids the trafficking of Nazi goods. Yahoo’s online auction site, based in California, includes Nazi memorabilia. Must Yahoo hide these items from its French users?

The answer, in this case, is yes. In 2000, a French tribunal forced Yahoo to suppress its Nazi auction items in France. But similar questions are arising in cases around the world. In their book Who Controls the Internet? Illusions of a Borderless World (Oxford Press, 2006), law professors Jack Goldsmith of Harvard and Tim Wu of Columbia argue that traditional legal regimes can and should apply in the online world. “What we have seen, time and time again,” they write, “is that physical coercion by government—the hallmark of a traditional legal system—remains far more important than anyone expected.”

American Scientist Online managing editor Greg Ross conducted this interview with Goldsmith, a member of the Hoover Institution’s Koret-Taube Task Force on National Security and Law, by e-mail.

Question: The Internet is breaking down borders socially and economically. Are political boundaries becoming less relevant?

A: The Internet continues a long-term trend of bringing the world closer together. But, if anything, the Internet has highlighted the importance of national boundaries. These boundaries roughly mark off different peoples with different languages, tastes, cultures, and expectations. Far from flattening the world, the Internet—its language, its content, its norms—is conforming to local conditions. The result is an Internet that differs dramatically among nations and regions. This bordered Internet reflects both top-down and bottomup pressures. Top-down pressures come from governments that are successfully imposing national laws on the Internet within their borders. Bottom-up pressures come from individuals in different places who demand an Internet that corresponds to local preferences and from the Web page operators and other content providers who shape the Internet experience to satisfy those demands. The result is an Internet that looks, feels, and is very different depending on whether you access it in China, the United States, or Africa.

Q: What are the biggest challenges in integrating “cyberlaw” within existing legal codes?

A: By “cyberlaw” I assume you mean laws that govern the Net (as opposed to activities outside the Net) and that are not tied to geography. With few exceptions, mostly having to do with the “law” of Internet protocols, cyberlaw has been a failure. It has failed because the Internet is not, in fact, separate from the world, and because people in different parts of the world have different views about how the Internet should be governed and have been unable to agree on laws to govern the entire Net. The result has been decentralized Net governance by various nations trying to impose their wills on various parts of the Net on issues ranging from speech to intellectual property to pornography to crime. This has produced many conflicts of national laws, but these conflicts have not proven intractable or as harmful to the Net as critics predicted.

Q: In the early days of the Web, many envisioned the Internet as a sovereign nation with digital “citizens.” What was wrong with that vision?

A: The failure of the Net as a sovereign place has many lessons for the importance and difficulty of governance. There was never a cohesive Net citizenry or community. Efforts to generate one—with, for example, the early attempts to have the “global Internet community” elect ICANN’s (the Internet Corporation for Assigned Names and Numbers) board members—proved embarrassing. And the supposedly sovereign Internet lacked a power that real governments have: the physical coercive force needed to ensure the provision of public goods (such as property rights enforcement, fraud prevention, and the like) that have been crucial to the Net’s development.

Q: If the Internet can’t govern itself, could individual nations agree to a common code, like admiralty law on the high seas? Wouldn’t a unified globe be simpler than a patchwork of nation-states?

A: The Internet can govern itself in many respects, in the same ways that individuals and groups in “real space” govern themselves in so many ways independent of the government. But the Net cannot replace real-space government any more than private groups in real space can. As for a common code to govern the Net, we have this in some respects with the protocols that make the Net possible. Beyond this minimal global “government,” what would a more ambitious global Internet law look like? Set aside how this law would be created and enforced, and focus simply on content. When you choose a single rule for six billion people, odds are that several billion, or more, will be unhappy with it. Is the American approach to Nazi speech right or the quite different French-German-Israeli variants? Should the competing interests of the free press and private reputation be balanced Australian style, U.S. style, or Saudi Arabian style? To what degree should gambling and pornography on the Web be allowed? Should data privacy be unregulated, modestly regulated, or heavily regulated? A single global answer to these and thousands of other questions would leave the world divided and discontented. Decentralized answers to these questions help us to get along.

Q: How does current law address issues like pollution, which ignore national boundaries?

A: Current law doesn’t always address the pollution problem very well. Some pollution is regulated unilaterally through nations following their own interests; this is closely analogous to what happens on the Net. And of course there are global treaties on pollution, a few of which have been successful.

But treaties on pollution have been easier to make than treaties governing, say, Internet speech, because disagreements about speech are much more intractable than disagreements about pollution.

Q: In 2006, researchers at Cambridge University claimed to have defeated the “Great Firewall of China,” the Chinese system for censoring Internet content. Given the global nature of the Internet, won’t attempts at local control ultimately prove futile?

A: I am skeptical of this claim; if anything China is proving the opposite point. The Cambridge program depends on receiving e-mails from users in China. If individual users in China can find the offshore anticensorship sites and software, so can the Chinese government, which means the government can regulate it. China has been remarkably adept at using external and internal filtering technologies and human censors to control political speech, and China is in the process of changing the very nature of the Net within its borders to facilitate this process.

Q: How would a bordered Internet deal with malicious acts like virus writing, denial-ofservice attacks, and “phishing” for passwords and credit card details?

A: These activities are hard for any institution to stop on a global basis.

Q: Do you foresee a settled outcome in the end? Can we set up a legal system that can accommodate new technologies as they appear?

A: There is nothing new under the sun. Everything said about the Internet’s challenge to government was said about the printing press and the telegraph.

We’ll muddle through now as we always have, with a combination of decentralized geographic governance, an occasional treaty, and private regulation and self-help.