Journal of International Legal Studies

Summer 1997

Article

*155 CYBERSPACE AND STATE SOVEREIGNTY

Henry H. Perritt, Jr. [FNa1]

In April of 1996 the United States Institute for Peace conducted a conference on "Virtual Diplomacy," exploring the interaction between new information technologies and international conflict management. During the conference many speakers observed that information technology threatens traditional political institutions. One panel explored the possibility that information technology threatens sovereignty itself.

Ordinary citizens as well as diplomats have instantaneous access to information about world events as they occur--through CNN sooner than through the CIA. Ordinary citizens interested in environmental protection or human rights can reach out and touch counterparts in other countries through the Internet, bypassing international treaty negotiators appointed by their own governments.

Overlapping revolutions in information technology and the convergence of communications, broadcast and data technologies into a single digital network of networks typified by the Internet, have undermined old political institutions and simultaneously made new international institutions likely because they make it feasible to reach across geographic political boundaries. [FN1]

*156 This article explores two interrelated questions arising in this changing environment. First, how do information technologies threaten old forms of political intermediation in the international arena? Second, what roles will information technology play through international law, and international legal institutions, [FN2] in the new world order, shaping new forms of political and legal intermediation to replace the old? The article emphasizes the Internet's role, explaining why it is a revolutionary information technology with potentially greater consequences than the telegraph, telephone, radio or television. [FN3]

While most of the themes are global in character, the article emphasizes Central and Eastern Europe. The author's engagement in the issues considered in the article began with construction of a Rule of Law in Bosnia. Many of the assertions about the role of information technology in building institutions for the New World Order are based on the author's experience in Bosnia and in other former Communist countries to enhance the functioning of state-based and international legal institutions through the Internet. [FN4]

The impact of information technology on the power of sovereign states is well recognized. [FN5] Without televised pictures of the casualties in Vietnam, the course of that war certainly would have been different. Television images and e-mail communication in the waning days of the Soviet Union altered reaction in other capitals with respect to coup attempts undermining the coup. CNN's broadcast of the violence in Tiananmen Square in China resulted in a level of world reaction that surely would not have occurred in the absence of that means of information dissemination. Without television's access to the violence in Bosnia, the world almost certainly would not have involved itself. [FN6]

Three generations earlier, new ideologies and new forms of totalitarianism made effective use of cinema and radio broadcasting. Three centuries before that the first stirrings of democracy found outlets through print media. New channels of political awareness and forms of political action always have arisen as information technology has changed. Now the Internet's potential to forge new links at the expense of old ones is beginning to be recognized.

The Internet, of course, is not the only information technology with the potential to change the way legal institutions function. The telegraph, telephone, radio, broadcast and cable television, and satellite television all have similar potentials. It is useful to consider briefly each of these non- Internet technologies, comparing and contrasting each with the Internet and drawing inferences about whether the Internet may have greater--or at least different--potential.

The telephone and telegraph had revolutionary potential because they permitted conversations without inherent geographic limits. Nevertheless, until recently, they were used mostly within nation states, and enjoy only limited use even there as mainstream tools for political or legal functions, aside from political fundraising and get-out-the-vote drives. They also play invisible but powerful roles in mobilizing interest groups to participate in the rulemaking process, keeping clients and counsel informed in the adjudicatory process and in organizing enforcement resources. These uses strengthen state-based political institutions. Because both telephone and telegraph technologies rely on physical circuits that are easily controlled at national borders, they only recently have become international tools. Also, because of high barriers to entry and regulatory programs that protect monopolies, prices have remained high for international services and the rate of innovation based on competitive exploitation of new technology developments has been limited. Recent WTO negotiations on liberalization of trade in telecommunications services may ease some of the limits. [FN7]

Radio broadcasting was the first electronic information technology that significantly affected mass political action. Franklin Roosevelt, Churchill, Hitler and Mussolini all understood and used this potential. Originally organized on a national or regional basis, use of higher frequencies led to significant use of radio as a propaganda tool during the Cold War. Radio Free Europe and Voice of America are examples. A significant reaction to this phenomenon was the widespread practice of jamming by both Soviet and U.S. interests during this period. [FN8] The jamming technology was developed as a way of limiting the transborder effects of undesired information dissemination through radio.

Television broadcasting is more powerful than radio because it provides visual as well as audio signals, but the technology is inherently short range. [FN9] Transborder issues have involved adjacent countries only, although the use of television within national markets to impact rulemaking decisions through political advertising, lobbying, and political organization has been profound. Its use in adjudication is almost nonexistent, [FN10] but one could argue that television is used as an enforcement tool through public service ads that promote compliance with rules and specific decisions. Cable television has the potential of extending the geographic reach of broadcast television, but relies on physical infrastructure that is easily controlled at national boundaries. There is, thus, no reason to suppose that cable television is a significant independent tool for international law and institutionalization.

*160 Satellite television, on the other hand, has enormous potential to relax the geographic limitations of broadcast television, [FN11] and its potential is widely recognized and feared by totalitarian regimes and those wishing to protect indigenous cultures. While satellite broadcast so far has stayed relatively docile within constraints set by international treaty mechanisms, [FN12] perhaps because of the enormous economic barriers to entry into the business, legal uncertainties make investors and organizers of satellite television initiatives exceptionally fearful. [FN13]

The Internet is now fairly well known, though frequently misunderstood. The Internet is an international network of computers and computer networks connected to each other, sharing a common name and address space. One can communicate with any computer connected to the Internet simply by establishing a connection to another computer connected to the Internet. The Internet is not a corporation or administrative arrangement; it is a method for connecting computer systems, and the phenomenon of very widespread adherence to that method. There is no such thing as a president or board of directors of the Internet. The Internet's private, cooperative, virtual, and decentralized character makes it a tantalizing model for organizing other forms of human activity through technology.

The World Wide Web is a method for organizing information distributed across the Internet. It facilitates unbundling because editors or publishers interested in collecting resources related to a particular subject need not obtain or maintain actual copies of the resources' content; they can make their knowledge available simply by writing a Web document that contains pointers to the identified references and information about the significance *161 of the resources. The clearest example is a typical law review footnote or citation in a legal brief. One can make the case or statute cited to available simply by pointing to it in the brief or law review article, and a user reading the brief or law review article can retrieve the full text pointed to simply by clicking on the footnote or citation. Because the Web unbundles the elements of information products it greatly reduces the cost of publishing and accessing information in electronic form.

What about the Internet distinguishes it from other information technologies and media? The Internet has inherently global reach, and thus is unlike television, telegraph, and telephone, and more like short wave radio. It has both the one-to-one characteristics of telephone and telegraph and the one-to- many characteristics of television and radio and thus is both a conversational and a mass medium.

Because of its packet switching rather than circuit switching character, it is far more difficult to impose physical border controls on the Internet than on other terrestrial wire-based or terrestrial microwave-based technologies. [FN14]

But the most important differentiating characteristic of the Internet is its extremely low barriers to entry. Because it uses other underlying physical communications infrastructures, a new Internet enterprise need not build a radio transmitter, string wire, or lay cable. All it takes to be an Internet publisher is a $2,000 personal computer and a $12.95 per month subscription to an Internet service provider. All it takes to be an Internet service provider is about $50,000, most of which goes for labor costs and a high bandwidth connection between the terminal server and router into the larger Internet. This is far less than what it takes to become a radio broadcaster, a print publisher or a telephone service even when there are no regulatory barriers to entry into those industries. Moreover, every user of the Internet is also a potential supplier of content; the Internet does not have the economic asymmetry of the radio or television technologies, where it is very cheap to receive information, but very expensive to broadcast it.

Finally, because of the way the Internet was developed, it has its own culture, which mistrusts traditional geographic, legal and political institutions. The Internet culture is quick to embrace new ideas for governance--*162 as long as they do not suggest intrusion by traditional political institutions. There was nothing like this in the early days of telephony or radio or television broadcasting. The net culture can exert an influence of its own in shaping new political and legal institutions. [FN15]

The Internet is a revolutionary phenomenon. It is not just a technology, but a way of organizing and connecting human activity, which emphasizes decentralization, specialization, and global cooperation. It is not merely a means for facilitating existing market and political institutions, but a way of redefining them altogether. The Internet is a new kind of market. It can be an electronic town hall in which rules are made, or an electronic courthouse in which disputes are decided. Unlike traditional sovereign states which are tied to geographic boundaries, [FN16] the Internet is inherently global and indifferent to geographic political boundaries. Its international character facilitates the development and extension of international political and legal institutions. The evolution of the Internet as a set of virtual legal institutions, as a market, and as a political entity, has enormous implications for the evolution of international law.

The Internet stimulates, as well as shapes, new legal institutions. International law must deal with the Internet, with a world in which the markets operate instantly to afford a choice among every single producer of a good or service, one in which new products are popularized and purchased through World Wide Web advertising and salesrooms, and one in which "virtual firms" are organized, raise capital and coordinate production entirely through the Internet. In this world, new monetary systems operate through cybermoney on the Internet, potentially freeing capital markets. Such markets create new interdependencies, in which the costs of war and social unrest are greater. Economics always drives politics, and the same technologies that make markets more efficient also can make democracy *163 more general through markets serving as a conduit for the spread of democracy.

The Internet already is reorganizing political interaction because it makes new forms of political intermediation possible. New forms of political intermediation threaten old forms.

The Internet's revolutionary potential arises from its enabling of new forms of intermediation. In this respect, it is qualitatively different from television. Television exposed masses to information, thus diluting the control of some traditional political intermediaries, but it did not make major new forms of intermediation possible. The Internet is different. While it permits anyone with a PC and a $12.95 a month connection to access anything in the world, it is not yet and may never be a mass medium. Instead, it is a technique for organizing those with shared interests. It permits members of relatively specialized diaspora to find each other anywhere in the world. It permits those affected by apparently innocuous legislative proposals to discover the threat and organize their opposition. It permits existing interests to focus and strengthen their activities (e.g., to oppose an Internet access charge proposal before the FCC or to promote environmental protective measures).

Political intermediation in complex societies has long been a source of challenge. That has been true for several thousand years, as Plato, Aristotle, Rousseau, Locke, and a host of other political philosophers have struggled to define institutional structures and political and legal process to determine the boundaries of public consent and the public interest. The Internet threatens existing political intermediaries because it provides new channels between sources of information and ordinary members of the public. No longer must a citizen depend on a newspaper or a television network to learn about a president's latest announcement, the citizen can get the announcement directly and immediately from the White House World Wide Web site. No longer must a lawyer wait for legal publishers to make the text of a new legislative act available; the lawyer may get it immediately and directly from the Thomas World Wide Web site at the United States Congress. No longer must the process of galvanizing public support for new political initiatives through the electoral process depend on political parties and speeches by candidates at rallies or expensive political advertising on television; now not only the candidates, but also affected interests can mobilize their past and future constituencies through the World Wide Web and e-mail.

*164 Intermediaries in modern societies take various forms. Some, such as parliaments, are explicitly political. Some, such as stock exchanges, are private and focused exclusively on economic relationships. Some, such as newspapers and television stations, are private and focus on a combination of economic and political transactions. The Internet threatens all of them.

The Internet threatens civic institutions such as the press, old interest groups, and professions (including the bar). It threatens the press because it lowers the cost of functions that the press performs. No longer does ownership of a printing press or a corporation employing reporters and editors give one exclusive control over distribution of promotion. Now anyone with a personal computer connected to the Internet can "publish" information to the world. The Internet threatens established interest groups because it makes their techniques of recruitment, organization, and maintenance of membership solidarity less relevant, as new factions within old organizations can spring into life more easily and challenge the value of the old organizations in the minds of their members. It challenges professions because it makes possible new kinds of affiliations between individual professionals, thus jeopardizing the relevancy of old firms of affiliations such as law firms and accounting firms, while also enabling new kinds of client relationships.

The Internet also threatens market institutions such as stock exchanges. The possibility of selling securities directly over the Internet makes specialists on the New York Stock Exchange less relevant and thus undermines the power of the exchange as a means of regulating securities markets. Because it makes possible new kinds of payment mechanisms, [FN17] it threatens the role of banks and existing financial networks.

These changes affect the role of the state itself. [FN18] Historically, the state had a monopoly on two important functions. [FN19] It protected nationalities *165 and their cultures from foreign intrusion and it organized markets. Since information technology makes it feasible to organize new legal institutions to protect human rights including nationality rights, the first role of the state diminishes in relative importance. Information technology increases the globalization of markets, making the state's role in organizing markets less essential as well. As the European Union has matured, producers in the Netherlands look less to the Hague and more to Brussels to protect them against unfair competition from Sweden or Spain. The result is a relative diminution in the saliency of the Dutch government as a protector against market abuse and a commensurate enhancement of European Community institutions.

The citizens of Yugoslavia shared two things. They all were Slavs, and they had been under foreign rule by Austria-Hungary and the Ottoman Empire for 400- 500 years. Yugoslavia protected them from foreign domination. When it became apparent to Slovenia and other Yugoslav republics that they could get from the European Union all the economic benefits formerly available only from the state of Yugoslavia [FN20] they began to think about seceding. The thought spread, and Yugoslavia fell apart.

In a larger sense, the Internet threatens traditional political intermediation because it threatens governmental control. Not only do the civic and market institutions lie at the heart of political organization (political parties are one kind of interest group, and much regulation is carried out through market organizations), but the Internet also directly challenges governmental control over information and political affiliation.

No longer can totalitarian regimes or plotters of military coups ensure themselves a safe environment by controlling the newspapers and the television stations. As the collapse of the Soviet empire, the failure of *166 the military coup in Russia, the siege of Sarajevo, and the continued voice of Serbia's Radio 92, show, the word leaks out through e-mail and the Internet regardless of what is