Paul Fehlinger: “Jurisdiction on the Internet: legal arms race or transnational multi-stakeholder cooperation?”

Zorba with Paul Fehlinger (Internet & Jurisdiction)

Paris.– “The Internet was conceived as a cross-border space, inherently transnational, but borders appeared with time”, was Paul Fehlinger’s opening line to talk about jurisdiction issues and the Internet. When the Internet was created, there was a big debate between “cyber-libertarians” – who thought it was a completely different space that would have different laws and characteristics– and the “cyber-realists” – who believed borders would eventually come. The debate was never really solved and faded out, but today billions of people use sites that cover multiple jurisdictions on a daily basis. Data travels across the world making it difficult to tie a single interaction to a specific jurisdiction. This reality challenges the Westphalian system of sovereignty, based on territoriality. Governments can react in two ways: they can re-erect borders in the Internet, which today is technically possible, although it would eliminate some of the key benefits of the global nature of the Internet; or they can develop new mechanisms based on transnational cooperation through the multi-stakeholder model. Paul’s organization, the Internet & Jurisdiction Project, precisely aims at enabling cooperation between the different stakeholders involved.

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There are many mechanisms for the governance OF the Internet, meaning for the technical dimension. ICANN is the closest thing to a regulator, a non-profit that manages the domain name system. Another technical governance organization is the IETF, which develops the Internet standards – which are adopted based on “rough consensus” and humming…yes, that’s right, the volume of hums determines whether there is consensus! There are other organizations that conform a decentralized ecosystem. Regarding the governance ON the Internet, there is almost nothing. There are few common standards and policies, almost no platforms or organizations to talk about these issues, and, more importantly, there are no proper enforcement mechanisms. The sheer amount of data and micro-conflicts makes it very difficult to handle. It’s a problem of “massive online micro-justice”. Today many issues are solved bilaterally between governments, or left at the decision of companies such as Facebook, Twitter or Youtube. But what is needed is transnational cooperation.

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