Who Should Govern Public International Computer Networks

8/9/2019 Who Should Govern Public International Computer Networks

1/24Electronic copy available at: http://ssrn.com/abstract=1119244

Henrik Spang-Hanssen

Who should govern

public international computer networks

Nordic Journal of International Law

2008

Volume

Pages -

(ISSN: 0902-7351)

US Citation:

Henrik Spang-Hanssen, Who should govern public international computer networks, (2008) 77 NordicJournal of International Law (upcoming 2008)

Official NJIL Citation:

Henrik Spang-Hanssen, Who should govern public international computer networks, 77: ... NordicJournal of International Law(2008) pp. (upcoming 2008)

This paper can be downloaded without charge fromSocial Science Research network Electronic Paper Collection

http://ssrn.com/abstract=1119244

2008 Nordic Journal of International Law & Henrik Spang-Hanssen

e-mail: [email protected] website: www.geocities.com/hssphSSRN Author: http://ssrn.com/author=943044


2/24Electronic copy available at: http://ssrn.com/abstract=1119244

77: Nordic Journal of International Law (2008) pp.

Henrik Spang-Hanssen page 1/23

Henrik Spang-Hanssen

Who should govern

public international computer networks

77: Nordic Journal of International Law (2008) pp. -

ABSTRACT

This article first notes that increasingly public international law impinges on private international law (conflict of law) andthat the Internet is a web of networks of computers around the world.

Its use exploded when English Berners-Lee from CERN in Switzerland offered the HTTP protocol to the world asan open source (- as is the case with the IP/TCP protocol).

This public international computer network has no central computer.Therefore with good reason, it can be argued that the Internet shall be governed by the international society.Next, is briefly mentioned the public international law on telecommunication (the technology of carrying electronic

communication) and that the Internet is a data delivering service.

The main part of the article deals with the issue of who should govern the Internet, discussing different organizations.It is argued, that no existing organ seems appropriate to govern the public international computer networks (the

Internet). Many countries regard it is being a common heritage of mankind.For example, ICANN is presently trying to get power over the Internet by distancing itself from the US Government

however it will continue being under US (California) law.Therefore, a completely new neutral international organ should be created - like the International Sea-Bed

Authority for the public international sea (High Sea).

In addition, the article briefly mention some incidents that probably are violations of public international law andjurisdictional rules on when a state can govern.

INDEX

1. Public international law .....................................................................................................................................22. The public international computer network .................................................................................................... 3

3. Public international law on telecommunication............... .......... ........... ........... ........... ........... .......... .......... ...... 4

4. When is a State allowed to govern..................................................................................................................... 6

5. Telecommunication Content ........................................................................................................................... 7

6. Telecommunicationpipe lines........................................................................................................................... 8

7. International governance Who should govern............................................................................................ 10

7.1. ITU International Telecommunications Union ........................................................................................ 127.2. ISO - International Standards Organization............................................................................................... 127.3. IETF - Internet Engineering Task Force .................................................................................................... 137.4. ICANN - Internet Corporation for Assigned Names and Numbers............................................................. 137.5. ITSO - International Telecommunications Satellite Organization.............................................................. 147.6. The Internet Governance Forum................................................................................................................. 15

8. Discussion..........................................................................................................................................................15

9. Violations........................................................................................................................................................... 16

10. The Root-server problem ............................................................................................................................... 19

11. Final remarks.................................................................................................................................................. 21


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Henrik Spang-Hanssen is by several scholars involved in public international law regarded as an extraordinary scientistand the one or one of very few that is an expert on the issue of the interconnection between public international lawand public international computer network (the Internet). He has primarily done research from Stanford University inCalifornia, Oxford University in England, and the Norwegian Research Center for Computer and Law, Oslo University.He first time used a computer back in 1971 at the Niels Bohr Institute in Copenhagen. He has Masters degrees in Lawfrom Denmark and California (US High Tech Law). He is a licensed Supreme Court attorney-at-law in Denmark andhas previously worked as prosecutor in Danish Appeal Courts. He is a previous student at the Technical University ofDenmark.He is the author of amongst others the books: Cyberspace Jurisdiction in the U.S. (2001), Cyberspace & International

Law on Jurisdiction (2004) and Public International Computer Network Law Issues (2006).

1. Public international law

The Internet is a web of networks of computers around the world. A Working Group under the

International Telecommunications Union (ITU)1

has defined the Internet as the publicly accessible

global packet switched network of networks that are interconnected through the use of thecommon network protocol IP.

2It encompasses protocols; names and addresses; facilities;

arrangements; and services and applications.

It consists of computers, servers, cables etc. owned by different companies and countriesaround the world. Thus it could be argued, the Internet is something like the High Sea belonging

to the international society of States and under the reign of public international law.Public international law is the sum total of legal norms governing rights and duties of thecollectivities of the ruling classes - civilized participants in international intercourse in war and

peace3

- without which it would be virtually impossible for the participants to have steady and

frequent intercourse.4

It deals with the conduct of nation-states and their relations with other states,

and to some extent also with their relations with individuals, business organizations, and otherlegal entities. In its conceptions, its specific norms and standards, and largely in practice,

international law functions between states, as represented by their governments.

It governs relations between independent States. The rules of law binding upon Statestherefore emanate from their own free will as expressed in conventions or by usages generally

accepted as expressing principles of law and established in order to regulate the relations between

these co-existing independent communities or with a view to the achievement of common aims.5

There is no central legislature with general law-making authority and there is no executive

institution to enforce public international law.

It is to be distinguished from Private International Law or Conflict of Laws, which cover a

certain States rules on judicial jurisdiction and competence, foreign judgments and choice oflaw.

6It is law directed to resolving controversies between private persons, natural as well as

1 (last visited 10 April 2008).2 H. Zhao,ITU and Internet Governance 6, 15 December 2004, ITU Council Working Group on the World Summit on

the Information Society Geneva 13-14 December 2004, WG-WSIS-7/6 Rev 1 (visited 10 April 2008) [hereinafter HOULIN ZHAO].

3 Definition from HENRIKSPANG-HANSSEN,CYBERSPACE &INTERNATIONAL LAW ON JURISDICTION - POSSIBILITIES

OF DIVIDING CYBERSPACE INTO JURISDICTIONS WITH HELP OF FILTERS AND FIREWALL SOFTWARE page 300 (DJFPublishing, Copenhagen 2004 - ISBN 87-574-0890-1)[hereinafter SPANG-HANSSEN-1].

4 I.A.SHEARER,STARKES INTERNATIONAL LAW 14 (11th Edition, Buttorworths).5 Introduction note to Part I, Chapter 1 of Restatement (Third) of Foreign Relation Law [hereinafter REST-Foreign].

Restrictions upon the independence of States cannot therefore be presumed, S.S. Lotus (France v. Turkey) 1927

P.C.I.J. (Ser. A) No. 10 para 18.6 Municipal law governs the domestic aspects of government and deals with issues between individuals, and between

individuals and the administrative apparatus, MALCOLMN.SHAW,INTERNATIONAL LAW 82 & 100 (4th Edition,

Cambridge University Press); IAN BROWNLIE,PRINCIPLES OF PUBLIC INTERNATIONAL LAW chapter 2 (6th Edition,


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juridical, primarily in domestic litigation, arising out of situations having a significant relationship

to more than one state.Increasingly, public international law impinges on private international activity,

7for example,

the law of jurisdiction and judgments and the law protecting persons.8

Public international law is a

law of the limits (Grenzrecht).9

2. The public international computer network

The Internet was built on the premise that nobody should be able to hinder telecommunication

from end user A to end user B. Thus, the main protocol for the Internet (IP) uses a packetswitching system that secure a communication reaches its destination. The first computer network

was involving servers placed in United States, Norway and England.10

Thus, the computer

network has from the very beginning been an international network.Another vital aspect of telecommunications on public international computer networks is the

use of the HTTP protocol that was developed by an Englishman working at CERN in Switzerland.

Berners-Lee, who invented the World Wide Web around 1990, dedicated the protocol to the whole

world.11

HTTPs (and thus www) purpose was to ease the interchange of information from onecomputer to another, thus making it possible to get information from foreign computers or

networks. Thus, HTTP, which is the basis for websites, is made for the purpose of makingtelecommunication across borders easy and accessible on an international computer network.

This shows that the inventors of the IP protocol and HTTP wanted to make a borderless and

public international computer network where people could get access to information on foreign

computers and thus exchange point of views.12

Thus, this computer network was not made to belong to any special State or group of nations,

but was intended to belong to the whole world. The Internet has no Central Computer It is a

network of computers intertwined with each other in order to allow users around the world to

Clarendon Press, Oxford)[hereinafter BROWNLIE]. The International Court of Justice in the Barcelona Traction,Light, and Power Co, Limited(Belgium v. Spain) (Second Phase) of February 5, 1970, 1970 I.C.J. 3, referred to

the rules generally accepted by municipal legal systems, not the municipal law of a particular state.7 The reason for why judges and lawyers should divert to the principles and decisions of foreign and international law

is globalization. No institution of government can afford any longer to ignore the rest of the world, Former

Associate Justice Supreme Court Justice of the U.S. Sandra Day OConnor, SOUTHERN CENTER FOR

INTERNATIONAL STUDIES, Atlanta , Georgia, October 28, 2003.8 Comments to 101 of REST-Foreign supra note 5.9 Footnote 78 in Catherine Kessedjian, Report on International Jurisdiction and Foreign Judgments in Civil and

Commercial Mattes, Hague Conference on Private International Law - Enforcement of Judgments - Prel. Doc.

No 7 - Revised Translation of October 1997, at (visited November 2003).10 History - ARPAnet 1957 1990, at (Last visited 21 December 2005);A Note

on the Internet page 2, Graduate School of Business, STANFORD UNIVERSITY 1996, at (Last visited 10 April 2005).

11 Berners-Lee is now director of the World Wide Web Consortium (W3C), which aim is to ensure the wwws

interoperability, (Last visited 10 April 2008). See further SPANG-HANSSEN-1supra note 3, at 2; andAmerican Civil Liberties Union v. Reno, 929 F.Supp 824, 836 para. 35 (E.D.Pa. 1996) andAmerican Civil Liberties Union v. Reno, 31 F.Supp.2d 473, 483 (E.D.Pa. 1999).

12 See also Hearing on Network Neutrality, Prepared Statement of 7 February 2006 from Vinton G. Cerf to U.S.

Senate Committee on Commerce, Science, and Transportation, at

(Last visited 10 April 2008) and Tim Berners-Lee to Tyler Hamilton, Battle for the Web, TORONTO STAR 28March 2006,

(Last visited March 2006).


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exchange information. The whole purpose of the Internet is for the sources of information to be in

many places rather than centralized. Any user can retrieve information that is stored on a Webserver in any physical location, as long as that server is connected to the Web.

13

With good reason, it can therefore be argued that the Internet should be governed by the

international society.In A Framework for Global Electronic Commerce is stated: The Global Information

Infrastructure ("GII"), still in the early stages of its development, is already transforming our

worldAs the Internet empowers citizens and democratizes societies it is also changing classic

business and economic paradigmsOne of the principles that the U.S. believes should be thefoundation for government policy... [is] guaranteeing open access to networks on a non-

discriminatory basis, so that GII users have access to the broadest range of information and

services.14

Former U.S. President Regan commented on the relationship between information systems,

individuals and States: technology will make it increasingly difficult for the states to control the

information its people receiveThe Goliath of totalitarianism will be brought down by the Davidof the microchip.

15

It is perfectly obvious that the communications revolution will have the most profound

influence on that fairly recent invention, the nation state. What the railroad and the telegraph did in

continental areas a hundred years ago, the jet plan and the communications satellite will soon bedoing to the whole world. The communications revolution is also moving us forward to the global

society a society made up of people who look upon themselves as global citizens, seeing planet

earth as one closely-knit unit with common problems and common aspirations. The barrier oflanguage, so long an impediment to global communication and so long one of the main buttresses

of national sovereignty, will soon be substantially broken down.16

3. Public international law on telecommunication

Telecommunications means the technology of carrying information by electrical and electronic

signals17

or the electronic transmission of information chosen by the sender between or among

places also chosen by the sender.

The definition embraces a universe of different services andtechnologies. As telecommunications have become automatic and rely less on human intervention,

the ability to complete transmissions across borders depends mainly on achieving compatibility

among different kinds of terminal equipment and private and public networks.18

Data, also called digital, is the fastest growing segment of telecommunications traffic. In the

first half of this decade, data traffic surpassed voice traffic, and telephony is now less than 10% of

total data traffic. Data is not in itself a service. Rather, it is a way of sending the information con-

13British Telecommunication Plc v. Prodigy Communications Corp., 217 F.Supp.2d 399, 410-411 (S.D.N.Y., Aug.

2002). This decision contains many technical facts on the architecture of the World Wide Web as the case dealt

with the question of copyright of its hyperlinks-system.

14 William J. Clinton & Albert Gore, Jr., A Framework for Global Electronic Commerce (1 July 1997) (Last visited 10 April 2008).

15 Ronald Reagan in speech at Londons Guildhall, 14 June 1989.16 C.G.WEERAMANTRY,UNIVERSALISING INTERNATIONAL LAW 139-140 (Martinus Nijhoff Publishers 2004 ISBN

90-04-13838-2) with quotations from Arthur C. Clarke,Report on Planet Earth and Other Speculations.17 MARKR. CHARTRAND, SATELLITE COMMUNICATIONS FOR THE NONSPECIALIST 103 (Spie Press 2004 ISBN 0-

8194-5185-1)[hereinafter CHARTRAND].18 CHARLES H.KENNEDY,AN INTRODUCTION TO INTERNATIONAL TELECOMMUNICATIONS LAW 3 & 37 (Artech House

Inc. 1996 ISBN 0-890068356).


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tained in an application; and data may be carried over terrestrial or satellite-based telephone

networks, over public or private terrestrial data networks, or over satellites.19

There exist no treaties, which require a freedom of speech combined with a right to cross-

border telecommunication. However, there exist some international declarations that suggest such

a regime. For example, the Universal Declaration of Human Rights states in Article 19:20

Everyone has the right to freedom of opinion and expression: this right includes freedom to hold

opinions without interference and to seek, receive and impart information and ideas through any

media and regardless of frontiers. Furthermore, there exists the International Covenant on Civil

and Political Rights that states in Article 19:21

(1) Everyone shall have the right to hold opinionswithout interference. (2) Everyone shall have the right to freedom of expression; this right shall

include freedom to seek, receive and impart information and ideas of all kinds, regardless of

frontiers, either orally, in writing or in print, in the form of art, or through any other media of hischoice. (3) The exercise of the rights provided for in paragraph 2 of this article carries with it

special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall

only be such as are provided by law and are necessary: (a) For respect of the rights or reputationsof others; (b) For the protection of national security or of public order (ordre public), or of public

health or morals.

However, this declaration does not mean under public international law that free speech cannot

be limited by a nation through legislation.22 Thus, under public international law, nations are to acertain degree allowed to impose limits on peoples right to publish their opinions, especially if it

is related to national security or cultural and on religious issues, which are often mentioned in a

nations constitution.On the other hand, as for free speech and public international law, there exists no international

law stating a nations citizen has to cut off content that is legal in at least one foreign nation

besides the citizens own nation - and thus probably acceptable to the U.N. Declaration of HumanRights on free speech. Thus, public international law does not prohibit a citizen from uploading

speech or information sent from a country where the content is permitted but accessed by a citizen

in a country where the content is prohibited.The Internets ever-changing technology also makes it very difficult if not impossible - to

govern the Internet and its users. The Secretary-General of the United Nations stated in 2003, fewmanifestations of the power of human creativity have so extensively and so quickly transformed

society as the rise of the Internet over the past decade. Dramatic as the changes may be, theprocess of assimilating and learning from them has only just begun.

23U.S. Supreme Court Justice

Souter has remarked that we should be shy about saying the final word today about what will be

accepted as reasonable tomorrowIn my own ignorance I have to accept the real possibilitythatif we had to decide todayjust what the First Amendment should mean in cyberspacewe

would get it fundamentally wrong.24

19 CHARTRANDsupra note 17, at 3.3.4.

20 Adopted by UN General Assembly Resolution 217A (III) of 10 December 1948.21 Adopted by General Assembly resolution 2200A (XXI) of 16 December 1966 - into force 23 March 1976, U.N.T.S.

No. 14668, vol. 999 (1976), p. 171.22 Confer Article 19(3) of UN International Covenant on Civil and Political Rights, Adopted by General Assembly

resolution 2200A (XXI) of 16 December 1966 - into force 23 March 1976.23 Kofi Annan in foreword to E-COMMERCE AND DEVELOPMENT REPORT 2003, United Nations Conference on Trade

and Development (U.N. 2003 ISBN 92-1-112602-9), also available at

(Last visited 10 April 2008).24Denver Area Educational Telecommunications Consortium, Inc. v FCC, 518 U.S. 727, 777 (U.S. 1996).


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4. When is a State allowed to govern

No laws of no nation can justify extend beyond its own territories, except so far as regards its own

citizens. They can have no force to control the sovereignty or rights of any other nation, within itsown jurisdiction.

25

Public international law on jurisdiction to prescribe in relation to international computer

networks can be summed up as in the table below for Pure Online cross-border & the Nationality26

and Territorial27 Principles. It should be added to the table that the Subjective TerritorialityPrinciple

28allows State D to prescribe in all of the fields, whereas the Active Personality

Principle29

allows the State of nationality or residency of the suspect to prescribe in all of the

fields.30

Made online from State D by

national of state A


national of State C, but citizen of

A


national of State B

Uploaded in

State E

International Law involved

State E regarded as sender orreceiver state?





Received in

State B


Objective31 and Passive32personality (controversial)

principles allow State B toprescribe?


Objective and Passive personality(controversial) principles allow

State B to prescribe?


This implies for online communication that it has to meet the requirements of the legislation

in:33

The State from where the original electronic communication (bits-transfer) was

prepared The State where the communication is uploaded The State of the communicators nationality, that is, for a private owned

communication firm where the owner is born, or a corporate is incorporated

25 Justice Story in The Apollon, 22 U.S. 362, 370 (U.S. 1824).26

The Nationality principle confers jurisdiction over nationals of the State concerned. It can be divided into the ActivePersonality Principle & the Passive Personality/Nationality Principle.

27 The Territoriality Principle confers jurisdiction on the State in which the person or the goods in question are situated

or the event in question took place. It can be divided into the Subjective Territoriality Principle & the Objective

Territoriality Principle.28 The Subjective Territoriality Principle permits a State to deal with acts that originated within its territory, but was

completed or consummated abroad.29 The Active Personality Principle is based on the nationality of the suspect. Public international law accepts

jurisdiction over a states owns citizens based on nationally, or a (closer) link between the individual and the statein question.

30 See further SPANG-HANSSEN-1supra note 3, at 300.31 The Objective Territoriality Principle permits a State to deal with acts which originated abroad but which, at least in

part, were (i) consummated or completed within their territory the Effect Doctrine; or (ii) producing gravely

harmful consequences to the social or economic order inside their territory - the Protective Theory.32 The Passive Personality Principle or Passive Nationality Principle is based on nationality of the victim, not the

nationality of the offender.33 SPANG-HANSSEN-1supra note 3, at 345.


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The State where the communicator is a citizen, that is, for a private ownedcommunication firm where the owner living or a corporate is having headquarter

From the receiver sites perspective,34

it should initially be noted that as the Passive

personality principle generally is rejected by the international society, the communicator does not

have to follow the legislation (statutes or case law) in the state of which the receiver is anationality. However, the online communicator might have to meet the requirement pursuant to

the Objective territoriality principle that permits a State to deal with acts which originated abroad

but which, at least in part, were consummated or completed within their territory (the effect doctrine); or producing gravely harmful consequences to the social or economic order inside their

territory (the protective theory).35

The above mean that a State cannot interfere with what is going on the Internet or on theinternational networks pipe-lines through which the electronic bits of the telecommunication is

transmitted. Thus, some international entity is necessary to govern the international networks of

computers.

5. Telecommunication Content

If the above mentioned does not allow a State to prescribe, the State cannot pursuant to publicinternational law make any ruling over telecommunication in the sphere called the Internet, whichis often illustrated as a cloud in an effort to demonstrate that the information is somewhere in the

network on a computer or a fortuitous proxy-server and accessible for everyone from everywhere.

The latter clearly imply that each States legislators and enforcement has to take greatconsideration to other States interests, which always has been the basis for public international

law.

Thus, it follows that as telecommunications in form of exchange of ideas and information is

done on the public international networks and the exchange crosses State-borders, no single nationcan by legislation decide what content is legal. Rather, a State can only decide what content its

own citizens legally should be allowed to receive through their own earth station (laptop, mobile

phone, flat screen). The public international network cannot be legislated as it is under thecontrol of public international law, because the international society does not allow a State to

make legislation that lowers the functionality of the IP-protocol and thus the packet-delivery of

information on the Internet.At the same time, the Internet has created new problems for communicators. The laws

developed for speech in the brick and mortar world do not adequately address the public

international computer networks. Opposite the situation in the brick and mortar worldcommunicators now can expect their communication to become available everywhere and to

everyone unless they do something that hinders some people access to their communication, or use

one-to-one communication like e-mail (though e-mail can be easily forwarded to others). The

exchange is often explained as happening in a cloud. If they do not hinder access, they can expect

liability claims from persons around the whole world that might have been hurt, because thereceiver comes from a different culture, religion etc. Thus, the communicators free speech rights

34Id. 346.35 The protective theory covers a variety of political offences and is not necessarily confined to political acts. The

principle is well established and seems justifiable because it protect a states vital interests. However, it can easily

be abused. The decisive is the importance of the offence, which standard is supplied solely by international law.


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in his own nation might not protect him, if the receiver is outside the communicators nation and

that nations legislation support remedies or criminal prosecution.Thus, under public international law, most Internet-telecommunication is not under control of

any fortuitous State as in practice most of the information on the Internet is placed on servers

outside the State in question.

6. Telecommunicationpipe lines

The Internet is not an application but a data delivery service. It uses and is defined by a pair of

protocols called Transmission Control Protocol, TCP and Internet Protocol, IP (usually referred toas TCP/IP). These define how the data is partitioned and carried, and contain techniques for error

control since the original Internet was designed to work on noisy, error-prone mesh networks.

TCP/ IP is a connection-oriented protocol meaning that it relies on getting acknowledgments ofeach data packet sent out. The Internet Protocol (IP) is a network layer protocol

36and its task is to

deliver packets of data from a source host to a destination host.

If professor Lawrence Lessig37

and several others are right that code is law, and if the

TCP/IP-protocol according to the constructors of Internet is the Constitution of the Internet, andnone of the users of the World (governments, international organizations and individuals) since

the establishment of the protocols has demanded it changed, one could fairly assert, that thisinternational basic protocol-code for international computer network, which Lessig describe aslaw, has become customary international law,

38which then can be advanced before and used by

the International Court of Justice in Hague.39

Even though the present version IPv4 has become a standard and maybe customary law, therehas already been made a new version of the IP-protocol,

40since the IPv4 has many serious limits

that a new version from 1996 (IPv641

) has been designed to overcome. IPv6 provides a larger

address space than IPv4 (128 bits in length to 32 bits), which latter only supports about

2.000.000.000 addresses and with an enormous waste of usable addresses. IPv6 uses a wiseraddress allocation policy so-called Classless Inter-Domain Routing (CIDR) -, which minimizes

the growth of routing tables, and provides more than a billion of billions addresses per square

meter on the Earth.The number of fields in the IPv6 packet header is reduced from IPv4 (8 versus 12). The IPv6

packet header is fixed-length size with a length of 40 octets, whereas the IPv4 header is variable-

length. Thus, routers have less processing to do per header, which should speed up routing.42

36 See further HENRIKSPANG-HANSSEN,PUBLIC INTERNATIONAL COMPUTERNETWORKLAW ISSUES Chapter 2, Table2.6 and Section 2.3 (DJF Publishing 2006 - ISBN 87-574-1486-6) [hereinafter SPANG-HANSSEN-2].

37 Lawrence Lessig, Legal Issues in Cyberspace: Hazards on the Information Superhighway: Reading the

Constitution in Cyberspace, 45 Emory.L.J. 869, 899 (1996) and LAWRENCE LESSIG,CODE AND OTHER LAWS OF

CYBERSPACE (Basic Books 1999 - ISBN 0-465-03913-8).38 Pursuant to STATEMENT OF PRINCIPLES APPLICABLE TO THE FORMATION OF GENERAL CUSTOMARY INTERNATIONAL

LAW as amended at the 2000 London conference (International Law Association) nr. 11 page 19 customary law

can be created by international organizations. The organs behind the TCP/IP-protocol can fairly be recognized assuch international organizations, (Last visited 10 April 2008).

39 SPANG-HANSSEN-1supra note 3, at 341 and SPANG-HANSSEN-2supra note 36, at Introduction, Henriks Fifth Base.40 See also ITU and its Activities: Related to Internet-Protocol (IP) Networks, Version 1.1, April 2004 at

(Last visited 10 April 2008) [hereinafter

ITU and its Activities].41 William Stallings, IPv6: The New Internet Protocol, IEEE Communications Magazine July 1996, Volume 34,

Number 7, also at (Last visited 10 April 2008).42 SPANG-HANSSEN-2supra note 36, at Chapter 2, section 2.5, section 2.6 and table 2.5.


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The IPv6 design simplifies processing. In IPv6, fragmentation may only be performed by the

source.In addition, the IPv6 has been designed to satisfy the growing need of security by allowing

the receiver to be reasonably sure about the origin of the data with use of end-to-end encryption of

data at the network layer. IP spoofing attacks and eavesdropping of data will be much more

difficult. However, network-level encryption poses new security problems. Another problem isthat decryption puts a considerable overload on the CPU and leaves the host more vulnerable to

flooding-type DoS attacks.

The new IPv6 protocol gives a few possibilities in its new header to make determination of the

sender. It allows use of a provider-based global unicast address, which provides for globaladdressing across the entire universe of connected hosts.

IPv6 accommodates local-use unicast

addresses, that is, packets with such addresses can only be routed locally, or within a subnetwork

or set of subnetworks of a given subscriber. This should not be against public international law asa State always has had the right to determine whether information can be imported to that States

own citizens. However, it will probably require a great force of people to keep a filter in function.

IPv6 also allows a subscriber to use multiple access providers, which might make it harder forStates to trace and censure a certain cybernauts telecommunications.

However, as it is not practical to simply replace all IPv4 routers in the Internet or a private

Internet with IPv6 routers - and replace all IPv4 addresses with IPv6 addresses - and as the new

IPv6 has not been implemented by very many people, experts expect it to take a least ten yearsbefore a significant part of the international computer network has changed from IPv4 to IPv6.

Thus, there will be a lengthy transition period where the two protocols will coexist. Such a long

change-period will allow IPv6 to become customary international law, fully or partly.As for the copper-phone-lines, satellites are also only part of the pipe lines for the public

international networks and a State is thus not allowed to hinder or interfere data-delivery

designated between two foreign States by passing another States territory including airspace.From above section IV, can be concluded that a State has the right under public international law

to make legislation over or totally forbid Earth stations in its territory to communicate with

satellites. Under public international law, the territory includes the air space above, but there is nodefinite km-limit. On the other hand, public international law does not allow a State to legislate or

make enforcement on satellites, and the telecommunication that is offered by a certain satellite ifthe satellite is not in a to narrow distance from the Earth.

43(It should be noted, the State in which

the owner of a satellite is located or incorporated of cause could give binding orders to thatowner). Except for satellites in the Clarke Orbit,

44which is govern internationally by the ITU,

45

anyone can launce a satellite into orbit and offer telecommunication including the information that

can be achieved from the international computer networks.Thus, under public international law most Internet-telecommunication are not under any

control of any fortuitous State as in practice most of the information is only in transit through

the pipe-line of that state in form of a bit send from a foreign country A to country B.

43 BROWNLIEsupra note 6, at 105, 255-259, OPPENHEIMS INTERNATIONAL LAW 479, 650, 662, 826-845 (London andNew York: Longman 9th Ed., paperback edition 1996), and D.J.HARRIS,CASES AND MATERIALS ON INTERNATIONAL

LAW 244 (5th Edition, Sweet & Maxwell, ISBN 0-421-53470-2Hb).44 Geosynchoronous Orbit Satellites (GSOs) are launched into a band 35,786 (22,300 miles) in altitude above Equator

where it moves in consonance with the terrestrial globe and therefore is constantly over the same point. Three

GSO-satellites can cover the total surface of the Earth. However, a GSO satellite cannot see any areas with latitudemore than 77o north or south.

45 Because the Clarke Orbit is only of 265,000 km in range is requires an administration of this limited natural

resource like the radio frequencies also administrated by ITU.


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7. International governance Who should govern

On basis of the above-mentioned one should ask who should govern the Internet consisting of a

data-deliverance and information-exchange. Internet governance was one of the most controversialissues debated during the whole process of preparation for the U.N. World Summit on the

Information Society46

(WSIS) partly because sovereignty is an issue that often arises, implicitly or

explicitly, in debates on Internet Governance.

A Working Group on Internet Governance (WGIG) defined in a draft Internet governance asfollows:

47

Descriptive Internet governance means the collective rules, procedures, and related programs intended to shape social actors expectations, practices, and interactionsconcerning Internet infrastructure and transactions and content

Prescriptive Internet governance should be multilateral, transparent and democratic,with the full and balanced involvement of governments, the private sector, civilsociety, and international organizations.

It should encompass both technical and public policy aspects, ensure an equitable distribution

of resources, facilitate access for all, and maintain the stable and secure functioning of the Internet,

taking into account multilingualism.

The final Report from the working group ended up with the following definition: Internetgovernance is the development and application by Governments, the private sector and civil

society, in their respective roles, of shared principles, norms, rules, decision-making procedures,and programmes that shape the evolution and use of the Internet.

48The management of the

Internet encompasses both technical and public policy issues and should involve all stakeholders

and relevant intergovernmental international organizations.49

46 The information societys very lifeblood is freedom. It is freedom that enables citizens everywhere to benefit fromknowledge, journalists to do their essential work, and citizens to hold government accountable. Without openness,

without the right to seek, receive and impart information and ideas through any media and regardless of frontiers,

the information revolution will stall, and the information society we hope to build will be stillborn, statement byKofi Annan on 16 November 2005 at the Second Phase of the World Summit on the Information Society (WSIS),

16-18 November 2005 in Tunis, (Last visited 10april 2008).

47 Annex to Introduction by the Chairman Mr. Nitin Desai of the Working Group on Internet Governance (WGIG) in

Geneva on 24 February 2005, at (Last visited 10 April 2008). See

also, HOULIN ZHAOsupra note 2, at section 4.1(b), and hisAddress on Internet Governance at Cairo 5 May 2004at (Last visited 10 April 2008) and

(Last visited April 2008).48 Para 34 of the Tunis Agenda for the Information Society [hereinafter TUNIS AGENDA], WSIS OUTCOME

DOCUMENTS 75 (International Telecommunication Union, December 2005) at

(Last visited 10 April 2008) [hereinafter WSIS OUTCOME], and

REPORT FROM THE WORKING GROUP ON INTERNET GOVERNANCE (WGIG) page 4, Doc. WSIS-II/PC-3/DOC/5-Eof 3 August 2005 at (Last visited 10 April 2008) [hereinafter WGIG

REPORT]. A Background Report, Doc WSIS-II/PC-3/DT/7(Rev. 2) E of 23 September 2005 of June 2005, and

participants comments can be found at (Last visited10 April 2008), Doc WSIS-II/PC-3/DT/7(Rev. 2) E of 23 September 2005

(Last visited 10 April 2008), WSIS-II/PC-3/DT/14(Rev.1)-Eof 27 September 2005 (Last visited 10 April 2008), and

complete text of all the contributions at

(Last visited 10 April 2008).49 TUNIS AGENDAsupra note 48, at para 35 and REPORT OF THE TUNIS PHASE OF THE WORLD SUMMIT ON THE

INFORMATION SOCIETY,TUNIS 16-18NOVEMBER2005, Doc WSIS-05/Tunis/Doc/9(Rev.1)-E of 15 February 2006

at (Last visited 10 April 2008) [hereinafter TUNIS REPORT].


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The WSIS has made a Declaration of Principles for Internet Governance, which in part

states:50

We declare our common desire and commitment to build a people-centered, inclusive

and development-oriented Information Society, where everyone can create, access,

utilize and share information and knowledge, enabling individuals, communities andpeoples to achieve their full potential in promoting their sustainable development and

improving their quality of life, premised on the purposes and principles of the Charter

of the United Nations and respecting fully and upholding the Universal Declaration of

Human Rights. We reaffirm, as an essential foundation of the Information Society, and as outlined in

Article 19 of the Universal Declaration of Human Rights, that everyone has the right to

freedom of opinion and expression; that this right includes freedom to hold opinionswithout interference and to seek, receive and impart information and ideas through any

media and regardless of frontiers. Communication is a fundamental social process, a

basic human need and the foundation of all social organization. It is central to theInformation Society. Everyone, everywhere should have the opportunity to participate

and no one should be excluded from the benefits the Information Society offers. Everyone shall be subject only to such limitations as are determined by law solely for

the purpose of securing due recognition and respect for the rights and freedoms ofothers and of meeting the just requirements of morality, public order and the general

welfare in a democratic societymay in no case be exercised contrary to the purposes

and principles of the United Nations. The international management of the Internet should be multilateral, transparent and

democratic, with the full involvement of governments, the private sector, civil society,

and international organizations. It should ensure an equitable distribution of resources,facilitate access for all, ensure a stable, and secure functioning of the Internet, taking

into account multilingualism. The Information Society should be founded on and stimulate respect for cultural

identity, cultural and linguistic diversity, traditions and religions, and foster dialogue

among cultures and civilizations. It is necessary to prevent the use of information resources and technologies for criminal

and terrorist purposes, while respecting human rights. Upholding the principle of the sovereign equality of all States.

The above summarizes the main issues that have to be taken into consideration when

considering which organ or institution is best suited to govern the Internet.

In this context, one should consider whether one or more of the existing international institutions

are suited to govern the Internet. The following institutions come to mind.

50 WSIS Geneva Declaration of Principles of December 2003 [hereinafter GENEVA DECLARATION] published inREPORT OF THE GENEVA PHASE OF THE WORLD SUMMIT ON THE INFORMATION SOCIETY, GENEVA 10-12

DECEMBER 2003, Doc WSIS-03/Geneva/9(Rev.1)-E of 18 February 2004 at (Last visited 10 April 2008) and WSIS OUTCOME

supra note 48, at 9-23, which was confirmed a the WSIS meeting in Tunis in November 2005, confer para 1 of the

Tunis Commitment [hereinafter TUNIS COMMITMENT], WSISOUTCOME supra note 48, at 57 and TUNIS REPORT

supra note 49.


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7.1. ITU International Telecommunications Union

The electronic radio spectrum is allocated primarily by a United Nations organization called the

International Telecommunications Union (ITU).51

There are three Sectors of the ITU: the

Radiocommunication Sector (ITU-R), the Telecommunication Development Sector (ITU-D)52

andthe Telecommunication Standardization Sector (ITU-T),

53which all work to build and support

tomorrow's networks and services.

54

It interprets the Radio Regulations, sets policies forregistering frequency uses, and maintains the Master International Frequency Register and theTable of Frequency Allocations.

ITU has treaty status, meaning that the provisions of the ITU's Constitution and Convention

are binding on ITU member countries. However, it is only a policy organization and has no

enforcement powers. It decides policies based on one-nation, one-vote, and any nation willing toadhere to its rules may join. Any member may object to adhering to any specific regulation by

filing an "exception" to the rules. The supreme governing body of the ITU is the Plenipotentiary

Conference, and meets every four years. ("plenipot"). The ITU has recently opened up its procedures to input from telecommunications firms and other nongovernmental organizations,

although only the nation members may vote.

The ITU considers the world divided into three large geographic regions. Regulations andstandards may be set differently in different regions, set the same in two regions, or even set

globally.

ITU-T deals mostly with communications traveling through wires and optical fibers. It has in

cooperation with the International Standards Organization developed such standards as V.90 for56-kbps modems and X.25 for packet switching.

Furthermore, it has made a set of rules for the Clark orbit for geostationary communications

satellites.

7.2. ISO - International Standards Organization

One of the most important international standards-setting and regulatory organizations is the

International Standards Organization (ISO),55

which covers areas of telecommunications and otherareas. It is a non-governmental organization outside the United Nations system, but is a network of

the national standards institutes of 156 countries. In particular, its Technical Committee 97 setsstandards for data processing and data communications. Central to this effort is the ISO's

Reference Model for Open Systems Inter-connection (the OSI model), which defines a

hierarchical structure within which open standards can be defined and defines seven "layers" of

data handling during transmission. In the OSI model which has been developed together withITU - the lower level functions (those that are independent of the particular task in which the end

51 (Last visited 10 April 2008). The Constitution and the Convention is included in Collection of the

basic texts of the ITU (1999) at (Last visited 10 April 2008). Thedefinitive regulations can be found either in the ITU Radio Regulations or in Part 47 of the United States Code of

Federal Regulations.52 Establish internationally agreed technical and operating standards Recommendations for networks and services.53 Assistance to developing countries to facilitate connectivity and access, foster policy, regulatory and network

readiness, expand human capacity through training programs, formulate financing strategies and e-enableenterprises in developing countries.

54 ITU and its Activitiessupra note 40.55 (Last visited 10 April 2008).


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users are engaged) are referred to as network functions. The higher-level activities (those that use

the network functions to perform specific tasks) are called the end-to-end, or end-user, functions.Some of the more notable standards developed within the OSI architecture are:

X.400: The Message-Handling (E-Mail) System - a set of standards, functioning at theupper layers of the OSI model, for interoperability among electronic messagingservices. X.400 divides e-mail networks into user agents and message transfer agents.

X.500: The Directory Standard that is protocols to support a global directory oftelecommunications users.

X.25: The Packet-Switching Standard, which defines the interface with the packet datanetwork at the network, data link, and physical layers.

7.3. IETF - Internet Engineering Task Force

The Internet Engineering Task Force (IETF) establishes operational standards for the Internet,

such as continuing development of the Transmission Control Protocol/Internet Protocol

(TCP/IP).56

One of the continuing problems is the coordination of activities and standards of theIETF and the ITU. The IETF is the protocol engineering and development arm of the Internet.

57

Though it existed informally for some time, the group was formally established by the Internet

Architecture Board (IAB) as part of the nonprofit nongovernmental international Internet Society(ISOC)58

in 1992. The IAB is responsible for defining the overall architecture of the Internet,

providing guidance and broad direction to the IETF. The IAB oversees a number of critical

activities in support of the Internet and also serves as the technology advisory group to the Internet

Society. The latter is a professional membership organization of Internet experts that comments onpolicies and practices and oversees a number of other boards and task forces dealing with network

policy issues.

7.4. ICANN - Internet Corporation for Assigned Names and Numbers

The Internet Corporation for Assigned Names and Numbers (ICANN) is a private corporation

registered in California and thus under the Law of California. It has with the United States

Department of Commerce entered into an agreement or a Memorandum of Understanding,originally entered into by the parties on 25 November 1998.

59

One primary task has been to fulfill the obligation of the Internet Assigned Numbers Authority(IANA), which is in charge of all unique parameters on the Internet, including IP (Internet

Protocol) addresses.60

Each domain name is associated with a unique IP address, a numerical name

56 Transport Control Protocol/Internet Protocol (TCP/IP) is a packet-switching protocol developed by the U.S.

Department of Defense. It drives the system of interacted packet networks known as the Internet.57 On the Internet Standard Process, see Bradner,Best Current Practice, RFC (Request for Comments) 2026 page 2-4

(October 1996) from (Last visited 10 April 2008).58 (Last visited 10 April 2008).

59 An American report holds that The continued successful operation of the DNS is not assured as many forces,driven by a variety of factors, are challenging the DNS's future Administration of the DNS at the highest level

should be left to a non-governmental body and not be turned over to an intergovernmental organizationLifewithout the stewardship of the U.S. government will open ICANN to political and commercial pressures,

SIGNPOSTS IN CYBERSPACE: THE DOMAIN NAME SYSTEM AND INTERNET NAVIGATION 2 and 6 (The National

Academies Press, 2005 - ISBN 0-309-54979-5), also at (Last visited 10 April2008).

60 The Domain Name System (DNS) consists of two components: (1) the root file and (2) the name servers. The first

is also called the dot. The latter stores for each Top-Level-Domain (TLD) a list of the (second-level) domain


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consisting of four blocks of up to three digits each, e.g. 204.146.46.8, which systems use to direct

information through the network.61

7.5. ITSO - International Telecommunications Satellite Organization

The International Telecommunications Satellite Organization (ITSO62

) that was calledINTELSAT

63until 18 July 2001 where the organization was restructured and created a

commercial and pro-competitive company named Intelsat, Ltd.

64

has the following mission andmain principles: Act as the supervisory authority of Intelsat, Ltd. Ensure the performance of core principles for the provision of public international

telecommunications services, with high reliability and quality. Promote public international telecommunications services to meet the needs of the

information and communication society.

Maintaining global connectivity and global coverage for any country or territory thatdesires to connect with any other country or territory within and between the five regionsof America, Western Europe, Eastern Europe, Africa and Asia.

Providing public telecommunications services, including capacity and price protection

guarantees, to customers identified as, and connecting with, "Lifeline ConnectivityObligation (LCO) customers.

Providing domestic public telecommunications services between areas separated bygeographic areas not under the jurisdiction of the State concerned, between areas separated

by the high seas, or between areas that are not linked by any terrestrial facilities and whichare separated by natural barriers of such an exceptional nature that they impede the

establishment of terrestrial facilities; and Ensuring non-discriminatory access to Intelsat, Ltd.s communications system.ITSOs governing body is the Assembly of Parties that meets normally every two years. It

has an executive organ headed by a Director General, which supervises and monitors Intelsat,

Ltds provision of public telecommunications services. ITSO is a multinational consortium of

countries and their telecommunications providers. Membership is open to any country that is amember of the ITU, but non-members may also use the space segment. As of March 2005, 148

nations were members of ITSO.65

Intelsat, Ltd. owns and operates 30 satellites and today offers a variety of telecommunications

services. There are over 300 authorized users of the Intelsat-system, who may communicate over

names of the TLD along with their corresponding IP addresses. The original root file is stored on the A-root-

server.61 On the history of the domain names, see The Domain Name System: A case study of the significance of norms to

Internet Governance, Harvard Law Faculty, HARVARD LAW REVIEW, 112 HVLR 1657, 1660-1663 (1999)[hereinafter HARVARD].

62 (Last visited 10 April 2008).

63 U.S. Congress allowed by the Orbit Act of 2000 (Public Law 106-180 that amended the Communications SatelliteAct of 1962) INTELSAT to be privatized.

64 The company is based in Washington, DC and headquartered in Bermuda. The corporate structure of Intelsat, Ltd.includes several subsidiaries established under the laws of various countries, (Last visited 10

April 2008).65 (Visited

March 2005) changed to

(Visited 10 April

2008)


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more than 27,000 Earth stations worldwide. The ITSO has jurisdiction over the space segment

only. It does not construct, finance, or maintain the Earth stations needed to communicate with thesystem. Nevertheless, any application for a new Earth station that will use the system must be

approved by ITSO. Approximately two-thirds of the world's international telecommunications

traffic is carried by Intelsat Ltd. It is the only satellite system with nondiscrimination and universalservice obligations.

There exists two main documents: the Agreement (the Intergovernmental Interim

Agreement66), and the Operating Agreement (the Special Agreement)67. The Agreement contains a

clause permitting the organization to authorize other satellite systems separate from INTELSAT(so-called Separate Satellite Systems).

7.6. The Internet Governance Forum

The Internet Governance Forum (IGF)68

is not the proper organ for governance of the public

international computer networks. The forum69

was made because the stockholders at world

summits, especially the governments, could not agree on making a new international organ togovern the Internet. Thus, the politicians choose an old political trick - if politicians cannot agree

and do not expect the thing or bill to disappear easily - submit the issue to a special appointed

subcommittee where hopefully the issue will be discussed in all eternity.

8. Discussion

One basic requirement for a body that should govern the Internet must be that it is an international

entity.70

This excludes any kind of an entity in shape of a corporation, which need to beincorporated in a State and thus follow that States laws that might be or might not be in

accordance with public international law.

As ICANN is a corporation71

and ITSO partly is a private commercial entity as Intelsat Ltd. isincorporated in the US neither of these organizations is suited to govern the public international

networks.

66 Agreement Relating to the International Telecommunications Satellite Organization INTELSAT, done at

Washington August 20, 1971 (into force February 12, 1973).67 Operation Agreement Relating to the International Telecommunications Satellite Organization INTELSAT, done

at Washington August 20, 1971 (into force February 12, 1973).68 First meeting in IGF October 30 November 2, 2006 in Athens, Greece.69 The Computers, Freedom and Privacy Conference in Wash D.C. in May 2006 found IGF should focus on 5 areas:

spam and other cybercrimes, multilingualism on the Internet, privacy, consumer protection, and international

connection fees, Wendy Leibowitz, Spam, multilingualism, Privacy may be concerns of new Internet Global

forum, 11 Electronic Commerce & Law Report (BNA) 538 (10 May 2006).70 The WGIG-Reportsupra note 47 at #52-#71 line up 4 different models.71 Thus, it does not matter that ICANNs executive has stated that it will operate as a private organization when its

agreement with the US Department of Commerce expires in 2006 and warned off the UN as ICANN in future

would not be under the authority of any international organization. The internet is 200,000 private networkslinked by private agreementAt the heart of the way the internet works is that it grows quickly through the

private-sector model. It's not formulated by international treaty, ICANN chief executive Paul Twomey to SimonHayes, No role for UN in ICANN, NEWS.COM.Au, November 16, 2004 at

(Last visited 16 November

2004). McNiel v Verisign & ICANN, 2005 WL 741939 (9th Cir., April 2005)(Affirmed that plaintiff could notassert a First Amendment claim against ICANN because ICANN, a non-profit public benefit corporation

established by agencies of the United States government to administer the Internet domain name system, is not a

government actor).


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The ISO is a truly international entity and thus not bound by a specific States law wherefore it

might be a possible governing organ for the Internet. Furthermore, it has as its purpose to makestandards on telecommunications. However, it also makes standards for a variety of other areas

other than telecommunication. As the entity that should govern the Internet ought to concentrate

only on the Internet and not to be dealing with anything else, ISO as an internationalstandardization entity should not be handed over the governance of the public international

computer networks.

As the entity that should govern the Internet ought to concentrate only on the Internet and not

to be dealing with anything else, ITU does neither seem to be suited to govern the Internet.Broadcast and phone-communication will probably for a long time require special national

legislation, which latter should not be an issue for the public international networks. Specially the

scarcity of the radio spectrum necessary for broadcasting imply that ITUs present tasks will neverend and thus prevent ITU from ever being able to fully concentrate instead on public international

computer networks. In addition, the ITU Member States has previously unanimously agreed that

ITU should not take over ICANNs functions, which latter only deals with a part of what should be handed over to an Internet governance entity. Furthermore, the ITU is only a policy

organization and has no enforcement powers, which an Internet governance entity must have.

The Internet Engineering Task Force is a large open international community of network

designers, operators, vendors, and researchers concerned with the evolution of the Internetarchitecture and the smooth operation of the Internet. As such it does not have the organizational

structure that is needed for an international organization governing the international networks of

computers as its structure is to loose. Furthermore, it is open to any interested individual.This brings me to the conclusion that a completely new international entity is necessary. The

Constitution for such an organization should be similar to the WSISs Declaration of Principles

for Internet Governance.72

Furthermore, the entity should be under the umbrella of the UnitedNations but entirely independent - so it would have an obligation to respond to declarations from

the U.N. Assembly and the still evolving public international law on human rights, including

freedom of speech.Furthermore, such a special public international entity would not have to take into

consideration old times regimes on telecommunications and thus not deal with the convergenceproblems the Internet has caused.

Very essential for such a new entity is that it is given some enforcement tools, for exampleallowing it to recall domain names used by a cybernaut in violation with public international law,

and having Standing before the International Court of Justice against States that have violated

public international law. Many other enforcement tools could be appropriate.

9. Violations

In connection with a discussion of public international law and governance of the Internet, it might

be appropriate to look at some violations of public international law that have occurred in the past

by States. Such violation should be an incitement for a future Internet governing entity to issuerules.

The same entity should also be aware of the fact that the computer has strained the familiarrules and categories in many areas of States substantive law.

73The use of telephone lines to carry

72 See above GENEVA DECLARATIONsupra note 50.73 HARVEY L. ZUCKMAN, ROBERT L. CRON-REVERE, ROBERT M. FREDEN, CHARLES H. KENNEDY, MODERN

COMMUNICATIONS LAW 775 (Hornbook Series Student Edition, West Group, 1999 ISBN 0-314-21176-4)].


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data among computes has presented novel problems of telecommunications regulation. Most

States have enacted elaborate rules to ensure that providers of computer communications obtainaccess to the telephone network on reasonable terms and conditions.

74Most recently, the E.U. has

decided to work against exclusion of users, to boost broadband coverage to at least 90 percent, and

make all public web sites accessible by 2010.75

This is opposite to what a part of members of the U.S. Congress

76thinks after having been

lobbied by U.S. tele-companies, which fight against the idea of Net Neutrality, which means that

all Internet sites must be treated equally.77 Instead, these will allow U.S. tele-companies the right

to for example to transmit their own services at faster speeds, or to charge Net content andapplication companies a fee for equally fast delivery. Thus, the telecommunications and cable

companies want to make a two-tired system, where all websites would be accessible, but prioritize

streaming video provided by the pipes owner or business partner.78

The chief architect of the World Wide Web, Tim Berners-Lee, has stated that his world-

changing invention would no longer be an open information space if broadband providers

abandoned the principle of Net Neutrality.79

One of the architects of the Internet Protocol, Vinton

74 In China, which has the world's second-biggest population of Internet users, 77 million or about two-thirds of the

total online population had broadband service in 2006, China says it now has 123 million Internet users ,SILICONVALLEY.COM, July 19, 2006 at (Last visited July 2006).

75 Riga Ministerial Declaration of 12 June 2006 in "IP-06-769_EN.pdf" can be downloaded from

(Last visited 10 April 2008).76 The House of Representatives voted by 269-152 on June 8, 2006 to reject extensive Net neutrality regulations

backed by technology companies. A Senate committee rejected proposed Net neutrality regulations by a tie vote,

11 to 11 on June 28, 2006. See 109th Congress, 2nd Session Senate bill S. 2686 & House bill HR 5252 and

comm_bill.pdf at .77 In Europe, Net neutrality is the rule, Berners-Lee to Jonathan Bennett, Berners-Lee calls for Net neutrality,

NEWS.COM.COM May 23 May 2006 (Last visited 10 April 2008).

However, the E.U. Commission has suggested what some state is an attempt by the European Union to regulatethe internet by the back door, see Proposal to Audiovisual Media Services Directive (AVCD), COM(2005) 646

final of 13 December 2005 at (Last visited April 2006), which suggest amendments to E.U.'s 1989 TV without Frontiers

Directive (TVWF Council Directive 89/552/EEC, O.J. L 298 of 17/10/1989 p. 0023) at (Last

visited April 2006) and Steve Ranger, E.U. trying to regulate web by the back door, Silicon.com, 20 September2005 at (Last visited 10 April 2008) and

E.U. Audio Visual Content Directive will hamper competition, PublicTechnology.net, 14 December 2005 at (Last visited 10

April 2008).78 It is also somewhat against the U.N. We the Peoples Millennium Forum Declaration and Agenda for Action of May

2000: Globalization and advances in technology create significant opportunities for people to connect, share andlearn from each other. At the same time, corporate-driven globalization increases inequities between and within

countries, undermines local traditions and cultures and escalates disparities between rich and poor, thereby

marginalizing large numbers of people in urban and rural areas...States are becoming weaker, while anunaccountable transnational private sector grows stronger. A single-minded focus on economic growth through

uncontrolled free markets, combined with the adjustment and stabilization policies of international financialinstitutions controlled by the rich creditor nations, are crippling many national economies, exacerbating poverty,

eroding human values and destroying the natural environment, U.N. Doc GA A/54/959 of 8. August 2000 at

(Last visited 10 April 2008).79 Berners-Lee to Tyler Hamilton, Battle for the Web, TORONTO STAR 28 March 2006 at

(Last visited March 2006)


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Cerf. has in a statement to the U.S. Senate pointed out that [a]llowing broadband carriers to

control what people see and do online would fundamentally undermine the principle that havemade the Internet such a success[and] could severely undercut our nations ability to compete

effectively in the global market.80

At this time could also be noted that the work of the WGIG

was guided in particular by the WSIS principle relating to the stable and secure functioning of theInternet.

81

The Internet and its use to carry voice telephone calls and audio programming have created

uncertainty as to the appropriate model for regulation of this new medium.82 The availability of

computers has challenged family beliefs about the protection of informational privacy, forexample whether the present patchwork of laws affecting access to databases, interception of

electronic communications and the right of individuals to control the collection, accuracy and use

of private information about themselves is adequate in the face of the explosion of data-gatheringtechnology.

Some States have tried to govern the Internet with use of filters. If the filtering interfere with

more than that states own residents, public international law will be violated. If a State tries tostop packets from certain foreign states, the telecommunication will not be stopped, but will be

rerouted. However, the efficiency of the Internet will be decreased as that States notes83

will not

work as cooperative as notes in free States, wherefore communication in free States will be

tampered with.A similar issue is raised by the argument of the government of the United States that it is

allowed to conduct surveillance of nearly 70 % of the Internet traffic, as circa 70 % of the routing

Internet servers are located in the U.S. The U.S.s Patriot Act84

and national security allowssuch surveillance. As national security concerns under public international law allow a State to

intervene, the U.S. thus claims it has the right to oversee nearly all Internet telecommunication.

However, this rule in public international law is a rule for exceptions.Another type of violation of public international law has been the decision of a French court

85

to decide what content Americans should be allowed to put on websites. Yahoo in California has

by the French court been given an order to remove certain content that has been uploaded by

80 Statement of 7 February 2006 to U.S. Senate Committee on Commerce, Science, and Transportations Hearing on

Network Neutrality page 1 & 8, at (Last visited March 2006).81

WGIG Reportsupra note 48 at 3 and repeated in TUNIS AGENDAsupra note 48, para 31 and TUNIS REPORTsupra

note 49.82 For example the U.S. Federal Communication Commission (FCC) has acknowledged that Third Generation

Wireless (3G) will provide access for small pocket terminals with world wide roaming capability, Internet and

other multimedia applications, see further on FCCs website at (Last visited 10 April 2008).83 A node is a device that is connected as part of a computer network. For example, a node may be a computer,

personal digital assistant, cell phone, router, switch, or hub.84 Especially 18 U.S.C. 2510 - 2511 (Interception of Computer Trespasser Communications) of USA Patriot Act

of 2001 (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct

Terrorism Act of 2001), Pub. L. No. 107-56 (Oct. 26, 2001).85 Two decisions of May 22nd 2000 and November 20th 2000 in LAssociation Union des Etudiants Juifs de France

& La Ligue Contre Le Racisme et LAntisemitisme v. La Societe Yahoo! Inc. & La Societe Yahoo France (Tribunalde Grande Instance de Paris, No. RG 00/05308 & 00/05309) at

(Last visited 7 August 2001) & as part of the Complaint in the American case at

(Last visited 7 August 2001). Unofficialtranslations of the French orders can be found at

(Last visited 10 April 2008) and (Last visited 10

April 2008).


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Americans on an American auction site and which content violate French law.86

The French court

has held it had jurisdiction over the Californian corporation, which does not do business inFrance.

87Such exercise of jurisdiction over the host of foreign website violates public

international law on jurisdiction.

A similar jurisdiction violation is the English High Courts exercise of jurisdiction inSchwarzenegger

88about an Internet libel suit launched against California Governor Arnold

Schwarzenegger. The suit arose from an article in the American newspaper LA Times available

online that discussed an alleged sexual harassment. The court held that an Internet publication

takes place in any jurisdiction where the relevant words are read or downloaded. Plaintiff was aHollywood publicist that claimed the online publication happened in England and Wales, offering

jurisdiction to an English court. Public international law has never allowed jurisdiction to a State

that does not have a relevant connection with the claim. A rationale that foreign persons can readEnglish and thus understand American websites and online newspapers should not be sufficient

under public international law for jurisdiction.89

Finally, it should be mentioned that section 4 of article 22 of the Cybercrime Convention90

allows a foreign State through its law to criminalize offences done in Cyberspace of a cybernaut of

another State even though the act is legal in the cybernaut's own State. This section in the

convention may be a violation of public international law in form of for example human rights

instruments. This article also allows global jurisdiction in violation with basic publicinternational law principles.

91

10. The Root-server problem

A special political struggle has been on the issue who should have supervision over the so-called

A-root file92

and thus the Internets (Domain Name) DNS-system93

(- In the sphere of the High

Sea: Who should have superior power over and decide the flag of ships).

The U.S. Government has so far not been willing to surrender the control over it to the globalcommunity,

94but has followed the opinion of House Representatives stating: We want to

strongly reiterate our support for continued Department of Commerce control over the so-called

A-root server. We believe that any assumption of control over that asset by any outside entity

86 France law forbids sale of and exhibiting nazistic material, French Penal Code Article R645. Unofficial English

translation at (Last visited 10 April 2008).87

See SPANG-HANSSEN-1supra note 3, at 184-188 and 483-503 & SPANG-HANSSEN-2supra note 36, at Chapter 6.88 Anna Richardson v. Arnold Schwarzenegger, Sean Walsh and Sheryl Main [2004] EWHC 2422 (High Court,

Queens Bench Division, October 29 2004 case no. HQ04X01371). See also, Case Comment: ArnoldSchwarzenegger Case not Terminated, Entertainment Law Review 2005, Ent. L.R. 2005, 16(6), 156-158.

Richardson v. Schwarzenegger, [2004] EWHC 2422 (High Court, Queens Bench Division, October 29 2004).89 On online newspapers, see SPANG-HANSSEN-2supra note 36, at Chapter 5.90 Convention on Cybercrime of 23 November 2001 (Council of Europe - ETS No. 185) - Into force July 1, 2004 - at

(Last visited 10 April 2008). See further SPANG-

HANSSEN-2supra note 36, at Chapter 7 section 7.6.

91 On Global Jurisdiction, see SPANG-HANSSEN-2supra note 36, at v-vi, 118-121, 129-145, 324.92 This file is held on 13 root-servers, which are maintained by different organizations, see further Root Servers

Technical Operation Association at (Last visited 10 April 2008).93 Domain Name System is an Internet service that translates domain names into IP addresses. Because domain names

are alphabetic, they are easier to remember. The DNS system is in itself a network. If one DNS server does not

know how to translate a particular domain name, it asks another one, and so on, until the correct IP address isreturned. HARVARDsupra note 61, at 1658.

94 U.S. Principles on the Internets Domain Name and Addressing System at

(Last visited 5 July 2005).


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would be contrary to the economic and national security interests of the United States.95

In June

2005, the U.S. Department of Commerce stated96

that: Given the Internets importance to theworlds economy, it is essential that the underlying DNS of the Internet remain stable and secure,

and for this reason the U.S. aims to maintain its historic role in authorizing changes or

modifications to the authoritative root zone file, which is part of the DNS infrastructure.97

Brazil, India, Syria, China and other countries have proposed that an international body take

over from ICANN. In June 2005, the European Union called for an international consensus on

Internet governance, without specifying the role of governments, the private sector or ICANN.98 It

has proposed to take over the DNS-system.99

However, it has withdrawn its proposal for aninternational oversight of ICANN.

100

The U.S.s behavior related to the Internets DNS-system seems like the behavior of previous

colonial-powers in the last century. It is an old fashion and non-democratic way of behavior that isunacceptable for the rest of the International Society in the twenty-first century. The Internet was

far from build by American-born scientists alone101

and for certain, the worldwide used www-

application (the http/html) was developed outside the U.S., namely at The European Organizationfor Nuclear Research.

102The CERN application was the one that made the use of the Net become

customer-friendly and made its use explode also in the U.S.103

As the Internet crosses national

borders, no individual government rightfully under public international can demand to manage the

domain name system, which in the beginning was managed by an individual scientists notice ofnicknames (domain names) in a little black book.

104

It is not desirable but by no means unrealistic that the Internets domain system becomes

divided into a fragmented root,105

where new top-level domains would be recognized and used by

95 From letter of 13 March 2002 from Representatives in the U.S. Congress to Secretary of U.S. Department of

Commerce at (Last visited 10 April 2008).96 U.S. Principles on the Internets Domain Name and Addressing System at

(Last visited 5 July 2005).97 John Blau, U.S. makes about-face on Internet directories - No longer plans to give up control of root servers in

Internet DNS, Computer World, July 1, 2005 at (Last visited 10

April 2008).98 Victoria Shannon, U.S. Seeks to Keep Role on Internet, INTERNATIONAL HERALD TRibune July 4, 2005, at

(Last visited 10 April 2008).99 Tom Wright, EU Tries to Unblock Internet Impasse, THE NEW YORK TIMES, September 30, 2005 at

(Last visited 10 april 2008).100 Proposal for addition to Chairs paper from Sub-Com An Internet Governance on Paragraph 5, WSIS-II/PC-

3/DT/21-E of 30 September 2005 at (Last visited 10 April 2008).101 Neither rules of property nor rules of intellectual property support the claim that the U.S. owns the worldwide

Internet, Markus Muller, Who Owns the internet? Ownership as a Legal basis for American control of the Internet,

15 FORDHAM INTELL.PROP.MEDIA &ENT.L.J. 709, 747 (2005).102 CERN: The world's largest particle physics laboratory ... where the web was born!,

(Last visited 10 April 2008).103 Berners-Lee, the chief architect of the World Wide Web, has stated that the whole point of the Web is when you

arrive its more or less the same for everybody. That integrity is really essential. Im very concerned if forexample broadband providers abandoned the principle of Net neutrality, Tyler Hamilton, Battle for the Web,

TORONTO STAR, March 28, 2006 at (Last visited 28 March 2006).104 HARVARDsupra note 60, at 1660-1663 (1999).105 Some countries, including the E.U., has offered to make and facilitate an (easy made) alternative on behalf of the

whole world, and it will be easy technically for the world outside to outsource U.S. root-servers if the U.S. wants

to behave as an isolationist (or attempts to be a IT-superpower). Victoria Shannon, A Compromise of Sorts on


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large portions of the rest of the world outside the (U.S. corporate) ICANN system. The downside

would be that such a nuclear option would let two computers find different web sites at the samedomain name.

The benefit on the other hand would be that the by American attorney introduced trademark-

system for Domain Names would evaporate as you cannot have two trademark-owners for thesame Domain Name in the same country. Thus, a nuclear option would make Domain Names

nothing more than nicknames (which they original was) like easy-phone numbers over which

latter courts have rejected to allow being trademarks. This would for certain decline or remove

much of the commercial/financial interest/motivation in the ICANN system.This would also bring the situation into the fact that the Internet has no Central

Computer106

It is a network of computers intertwined with each other in order to allow users

around the world to exchange information.107

The U.S. seems only to a small degree having changed its position even by its 2006 agreement

with ICANN, which still is a California corporation and thus under US law.108

The US control is

still making international concern.109

In Spring 2008, ICANN's president Paul Twomey has argued that the organization has met

nearly all those objectives raised by the US government, and the time has come for ICANN to

break free.110

However, ICANN still intend being incorporated under California - thus US - law.

Thus, the questions still center on whether it would become independent111 to a degree foradministrating an area that by many countries is regarded somewhat belonging to a common

heritage of mankind.112

11. Final remarks

My suggestion is that the public international computer networks should be governed by a

completely new independent (like the ICJ and the International Sea-Bed Authority113

) entity

Internet Control, THE NEW YORK TIMES, November 16, 2005 at (Last visited 10 April 2008); Tom Wright, EU Tries to

Unblock Internet Impasse, THE NEW YORK TIMES, 30 September 2005 at (Last visited 10 April 2008).

106British Telecommunication Plc v. Prodigy Communications Corp., 217 F.Supp.2d 399, 410 (S.D.N.Y., Aug. 2002).

This decision contains many technical facts on the architecture of the World Wide Web as the case dealt with the

question of copyright of its hyperlinks-system.107British Telecommunications Plc v. One In A Million Ltd., [1999] F.S.R. 1, 1998 WL 1043831, [1998] 4 All E.R.

476, [1999] E.T.M.R. 61 (English Court of Appeal, July 1998)(There is no central authority regulating theInternet, which is almost entirely governed by convention. But registration services in respect of domain names are

provided by a number of organizations).108 Victoria Shannon, A Compromise of Sorts on Internet Control, THE NEW YORKTIMES, 16 November 2005 at

(Last visited 10 April 2008).109 Anick Jesdanun, U.S. Internet control lead topic in Rio, AP 9 November 2007 at

(Last visited November 2007) & U.N.

Internet forum ends with U.S. control of core systems still at issue, Associated Press, 15 November 2007 at (Last visited November 207).

110 Geoff Duncan, ICANN Makes Case for Independence, 25 January 2008, Digital Trends at (Last visited 10 April 2008).

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Who Should Govern Public International Computer Networks

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