The Internet's self-governance gap: Law, markets, code, and norms as institutions of self-governance in the Internet operational community.

摘要

The Internet suffers from an increasing "self-governance gap" that prevents the Internet Service Provider (ISP) industry from improving the Internet to meet the expectations placed on it. The ISP networks that collectively comprise the Internet are operationally autonomous yet interdependent. This interdependence is mediated by institutions of self-governance of four types (law, market forces, technical architecture (or code), and social norms). While market forces and law are of limited, bilateral effect, multilateral, network-wide relationships within the Internet are governed by shared technical code and social norms. Code and norms substitute for the centralized control and formal legal and economic relationships normally found in public communications infrastructures. However, these institutions of self-governance, which have their roots in the Internet's non-commercial and informal past, are no longer suited to its hyper-commercial present or future.; The study focuses on the decentralized aspects of the Internet, rather than on its centralized aspects (such as domain names), which have received attention in the Internet governance literature far out of proportion to their importance. The analysis employs the institutional law and economics (ILE) theory of Douglass C. North (and others), the code theory of Lawrence Lessig, and the law and social norms (LSN) theory of Robert Ellickson. Two unique community self-governance bodies are studied in detail: the Internet Engineering Task Force (IETF) and North American Network Operators Group (NANOG). In the legal pluralist tradition, original technical materials from these bodies are treated as worthy of analysis by legal scholars, on the theory that today, legal rights and obligations are often shaped by and embodied in code (or technical architecture), as much as by market forces, social norms, and law.; The Internet's worsening self-governance gap is at the root of economic, technical, and operational barriers to the continued development of the Internet as a public communications infrastructure. The self-governance gap suggests the need for a different mix of institutions to address the coordination problems facing the Internet operational community. While a complete solution is not proposed in this work, a "co-regulatory" approach, under which an international public legal framework would supplement the industry's own self-governance institutions, holds promise.