In the Shadow of the State: Self-Regulatory Trajectories in a Digital Age

Introduction Few outside the small community of network specialists and information technology experts knew much about the nature of the Internet when it surged to public prominence in the mid-1990s. Those familiar with the technology asserted that governments did not possess any methods of enforcement in cyberspace because " the Net interprets censorship as damage and routes around it. " 1 Some students of politics hailed the rise of the Internet and the image of a networked world as indisputable evidence that the age of the nation state was coming to an end. 2 Global, non-hierarchical and all-inclusive, the Internet represented the prototypical antithesis of the modern territorial nation state. The nation state's authority, it was suggested, would inevitably decline as the Internet penetrated ever more areas of life. Just a few years into the Internet revolution it is evident that the early notion of a simple zero-sum relationship between Internet reach and state authority is severely flawed. The Internet – and digital network technologies and their applications more generally – certainly destabilized many postwar domestic regulatory bargains, creating pressures for governments to recreate political equilibria in various policy fields. Political debates in areas as diverse as taxation and tariffs, intellectual property protection and contract enforcement, or free speech and privacy protection have been reopened. At the same time, and confirming partially the claims by libertarian technoanarchists, the distributed and la rgely decentralized character of the underlying technology has undermined many conventional regulatory strategies of government command and control in cyberspace. 3 Moreover, the interpenetration of formerly discrete national markets made possible by their digitization and interlinkage via communications and data networks has transformed many domestic regulatory decisions into actions with international consequences. These challenges notwithstanding, libertarian technoanarchists were simply wrong in their claim that cyberspace permitted no regulatory intervention whatsoever. 4 It is increasingly apparent that it is not a question whether regulation will occur, but rather what type of controls will appear in a given policy area. seminar participants at the Max-Planck-Institute for the Study of Societies in Cologne for helpful comments and suggestions on an earlier draft. For a dis cussion of " command and control " regulation, see Baldwin and Cave (1999). 4 Larry Lessig has written an entire book showing that there is nothing inherent in the Internet and its enabling technologies that makes it free or " unregulable, " as he puts it. The …