Comparative Telecommunications Law
Spring, 2007
Prof. Karl Manheim
15: Internet II (Regulation)
Copyright © 2007
Regulating the Internet
The InterNetwork looks a lot like the PSTN
Should it be regulated?

If so, by whom?
 International (ITU)
 National Regulatory Agencies (FCC)
 Local Agencies (PUCs)

Who decides?
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Who regulates its use
No one regulates the internet as such

compare regulation of the spectrum
Regulation of components

telecom components regulated by FCC / PUCs
Regulation of content

content is private / privately owned, subject to
regulation just as other communication modes
Regulation of transactions


consumer protection, product safety
taxation
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Early Decisions on Regulation
1997: Dept. of Commerce “Green Paper”

Request for comments (RFC) re regulation
 Proposed to “privatize the Internet”
 Pushed by Pres. Clinton and Ira Magaziner
1998: DoC “White Paper”


Finalized “privatization”
Solicited bids for private management of
architecture and domain name system
Int’l community excluded from the process
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ICANN
Internet Corporation on Assigned Names
and Numbers <link>

Private non-profit California Corp.
 Headquartered in Marina Del Rey


Memorandum of Understanding (MoU, contract)
with DoC in 1999; renewed
Real authority based on simply being there
 Network operators and DNS managers could defect
at any time, but then there is the problem of
 NETWORKING EFFECTS
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Networking Effects
Interconnection requires standards



New entrants invariably adopt those standards
Value of a network to existing users increases
as the number of new users grows
Examples:
 PSTN
 Microsoft Word, PowerPoint
 Legal System
Defection exacts a very high price

Alternate internets have been tried / all failed
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Who sets technical standards?
Uniformity / standardization is vital
Neither set nor promoted by gov’t

NGOs (industry & users) set the standards
 HTTP/HTML (web) - W3C
 IP (communication) - IETF
 DNS (names and numbers) ICANN
 Pop and Imap (E-mail) IETF

Why didn’t federal or international agency
(ITU) attempt standards?
 Too late
 Tech nerds are anarchists ?
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The Domain Name System
gTLDs



IANA/legacy: .com .net .org .edu .gov .mil .int
Added: .name .info. .museum .biz [full list]
Process: evaluation (“beauty contest”) .xxx
ccTLDs


Each country manages its own
.us was privatized in 2003
Registries (manage TLDs)
Registrars (manage SLDs) (submit to registry)
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.eu (ccTLD)
The .eu TLD

Proposed by EC at 2000 Lisbon eEurope conf.
 To improve the interoperability of e-commerce
 Address the Digital Divide (esp. accession countries)


Available throughout the EEA
Approved by ICANN (subject to Registry approval)
Regulation 733/2002/EC


Establishes process for selecting .eu Registry
Also, rules for registration of SLDs in .eu
 No cc SLDs; (e.g., xxx.it.eu not permitted)
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Int’l Involvement in Internet Reg’n
ITU


No formal jurisdiction
WSIS (World Summit on Information Society)
UN

WGIG (Working Group on Internet Governance)
 Challenge to ICANN authority
WIPO

Authorized arbiter for UDRP disputes
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Int’l Involvement in Internet Reg’n
International participation in ICANN




CCSO (Country Code Supporting Organization)
GAC (Government Advisory Committee)
Regional elections (abandoned in 2002)
Continental Conferences (3/year)
Enlargement of IP Number Space


IPv4: 32 bit (232=4.3 billion) (28.28.28.28)
IPv6: 128 bit (2128=3.4x1038) (100 trillion*tr*tr)
IDN (Int’l Domain Names)
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0
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2000
2005
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E. Europe
S./C. America
Asia-Pacific
W. Europe
N. America
250
200
150
100
50
New Era in Internet Governance
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World Summit on Info Society
WSIS originally proposed by ITU in 1998
Formally endorsed by the UN in 2001
Regional meetings, 2002 – 2003
PrepCom process, started in July 2002
First phase, Geneva 10-12 December 2003
Second phase, Tunis, 16-18 November
2005
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World Summit on Info Society
Management of Internet names and
addresses

Internet domain names such as www.itu.int,
www.ibm.com, www.ibm.ch, etc…
 highly visible, brand names, linked with identity

Internet Protocol (IP) Addresses
 End-point identifiers need to route Internet packets
 mostly invisible, required to be “on the Internet”
Most of the Internet governance debate is
here
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WSIS Key Agreements - Tunis
¶ 28: “reinforcement of specialized regional Inet resource
management institutions to guarantee rights of countries
in that particular region to manage their own Internet
resources, while maintaining global coordination.”
¶ 63: “Countries should not be involved in decisions
regarding another country’s ccTLD”
¶ 64: “need for further development of, and strengthened
co-operation among stakeholders for gTLDs”
¶ 70: globally applicable public policy principles on ICANN
¶ 71: UN to begin "enhanced cooperation" process 2006.
¶ 72-82: Establish an Internet Governance Forum (IGF)
 First meeting in Athens in 2006
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Content Regulation
Communications Decency Act (CDA)


Part of 1996 TCA
Invalidated in Reno v. ACLU (1997)
Child Online Protection Act (COPA)

Invalidated in Ashcroft v. ACLU (2004)
Obscenity


Covered under existing state and federal laws
Interesting jurisdictional issues
 Passive vs. Active web sites
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Miller v. California
(1973)
Standards for unprotected obscenity



Works that depict or describe sexual conduct
Taken as a whole, appeals to the prurient
interest in sex (contemporary community standards)
Portray sex in patently offensive way (hard core)
 intercourse, masturbation, excretion,
lewd exhibition of genitals

Taken as a whole, do not have
serious literary, political, or
scientific value
 objective national standards
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Reno v. ACLU (1997)
Communications Decency Act (CDA/TCA)
prohibits "knowing" transmission of "obscene or
indecent" messages to any recipient under 18y
st
 Held: CDA violates the 1 amendment

 Gov’t has compelling interest in protecting children
 But, CDA swept too broadly

In operation, it suppressed speech that adults had const’l
right to send and receive
 Less restrictive means were available


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E.g., filtering software
Giving parents the choice to allow access
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Ashcroft v. ACLU
(2004)
Child Online Protection Act (COPA)

worked for
Breyer,
Rehnquist,
O’Connor
Prohibits online material harmful to minors
 Grafts “to minors” on to Miller standard


trying to expand this category of unprotected speech
Didn’t work: obscene “to minors” isn’t unprotected
 Exception: material made unavailable to minors


to address overbreadth problem in Reno
ok, but less restrictive alternative test still applies
 filters, school/library restrictions, etc. may work better
 COPA exacerbates problem by driving industry offshore
 COPA applies only to web, not other Internet uses
Stevens: community standards test incompatible
with the Internet
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
UEJF v. Yahoo!
(TGI, 2000)
Sale of Nazi memorabilia on auction site



Delaware Corp.
Web sites hosted somewhere in US
Viewable in France
Ordered to exclude french I’net users

Technologically feasible?
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Internet Censorship
China - The Great Firewall




Filtering on the basis of web server IP address
On the basis of domain name server IP
address
DNS redirection
Filtering on the basis of keywords in URL
 Search Engine searches

Filtering on the basis of keywords or phrases in
HTML response
 Search engine responses
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