Cyberspace Governance

Governance in Cyberspace

In his book “Cyberthreats and International Law” (Eleven International Publishing, 2012), Georg Kerschischnig wrote:

“Most governments have long been underestimating the power vested within ICT, in particular
the Internet. This put the private sector and civil society in the driver’s seat, which
– with slackened reins – promoted technical innovation and picked up new ways to communicate and to generate income. Always being a step behind the private sector, states started to adapt to the new challenges they saw themselves confronted with, ranging from new forms of crime to the loss of sovereignty caused by the borderless architecture of cyberspace, only to find out that without substantial international cooperation any effort to harness cyberspace was futile.

Technical cooperation had been around in the telecommunications sector long before
the birth of the Internet under the auspices of the International Telecommunication Union
(ITU), one of the oldest international organizations, nowa specialized agency of the United
Nations (UN). The Internet as well knew technical cooperation from its beginning, but
– unlike the ITU – not at the governmental, but at the private sector level. Instead of being
based on international treaties, it depended on “rough consensus and running code”
and featured a clear depreciation of any government involvement.20 Governing decisions were
taken for pragmatic, not political reasons. However, this firm stance has become partly
diluted today, since civil society recognized that governments had to be involved to tackle
cybercrime, ensure sustainability of criticalservices, and defend the public interest against
narrow commercial deliberations. (In this regard, see the European Commission 2009 – Internet governance: the next steps, 4; see also Casacuberta David/Senges Max, Do we need new rights in Cyberspace?, Discussing the case of how to define on-line privacy in an Internet Bill of Rights, in: Enrahoar, Vol. 40/41, 2008, 99 et seq.)

While in the beginning this approach of bottom-up self-regulation worked to the satisfaction
of all parties, states – in particular the U.S. government, claiming its birthright – have tried to get a firmer grasp over time. Yet, the tenacity of the hitherto keepers of cyberspace led to the establishment of a multi-stakeholder approach, including governments, the private sector, and civilsociety. However,so far no single body has been agreed on to undertake holistic Internet governance, and the respective roles and responsibilities are distributed among different bodies,with varying degrees of independence and powers.

Parallel to this multi-stakeholder approach, governments still reserved the exclusive
right to govern some areas on their own.It became obviousthat a response to the flourishing
cybercrime was necessary, and many states started to exercise their traditional coercive
monopoly by delegitimizing certain actsin cyberspace. However, the lack of harmonization
had a hampering effect on lawenforcement. To betterthissituation, theCouncil of Europe
(CoE) drafted its Convention on Cybercrime (Council of Europe, Convention on Cybercrime, November 23, 2001, ETS No. 185, conventions.coe.int/Treaty/en/Treaties/Html/185.htm), an international convention also open for non-CoE member states that entered into force in 2004. It is the first and still the only international legal instrument to tackle cybercrime. Unfortunately, the lack of multi-stake holderism in the drafting process became visible through inadequate human rights references, and the convention fallsshort of ensuring adherence to human rightsin relation to non-CoE memberstates.Yet, human rights are even more endangered by other measures states take unilaterally: initially it was believed that the technologies of cyberspace would ensure the freedom of information and would overcome all possible governmental limitations.

Reality proved that technology can beat technology. Western ICT companies equip
governments around the world with the necessary means to limit, censor, monitor, and
track down individualsthey deem to have broken the law. The spectrum ofstate interference rangesfrom actions potentially adequate in democratic societies(such asthe suppression
of child pornography) to the crackdown on dissidentsin oppressive regime.”


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