Stewardship versus Sovereignty? International Law and the Apportionment of Cyberspace

Last month, I was scheduled to attend Cyber Dialogue 2012 – What is Stewardship in Cyberspace? at the University of Toronto’s Munk School of Global Affairs.  I was quite excited to attend given the line-up of participants with a truly diverse set of backgrounds and areas of expertise.  Unfortunately, despite nearly nine hours in the Philadelphia airport, I never made it because of this. Indeed, not only couldn’t I fly to Toronto, over the course of the morning and early afternoon I learned that I couldn’t get to Detroit, Erie, Syracuse or even Elmira, New York.  The day reminded me of one my favorite childhood stories from the “Bert and I” albums — ‘You can’t get there from here’.

Despite my physical absence, I did, however, contribute a short essay, which is now available on the conference website and on SSRN.  Here’s the abstract:

The 2012 Cyber Dialogue Conference, hosted by the University of Toronto, asked the question ‘What is Stewardship in Cyberspace’? This essay pursues that stewardship inquiry through the lens of international law. Existing debates on the nature of cyberspace have emphasized its suitability for governance by social norms, domestic law, or some combination of the two. Questions of international law — to the extent they are raised at all — have been limited to asking how (and how well) existing rules analogize to cyberspace. But international law also clearly has something to say about defining what kind of resource cyberspace is (or might become).

International law has long divvied up the world’s resources into categories, with different forms of governance for different types of resources. These categories suggest that a stewardship approach to regulating cyberspace could work. But doing so requires a critical assumption: that cyberspace is a shared resource (or one where individual interests are so comingled as to defy separation). That vision of cyberspace is not, however, universally held. Some deny that cyberspace is “space” at all, or insist that its resources can be (and are better off) apportioned to individual States. In particular, any use of the “stewardship” label for cyberspace governance will generate opposition from those who prefer to label cyberspace as subject to governance based on sovereignty. A contest pitting stewardship against sovereignty is likely to forestall, if not derail, agreement on any particular governance structure for cyberspace. Such a fight is not, however, inevitable. International law does not limit governing frameworks to those accompanying stewardship or sovereignty, but offers a spectrum of ways to regulate resources. This paper undertakes a brief survey of these hybrid approaches and suggests that — instead of fighting over what we should call cyberspace — a discussion of what behavior we want to encourage (or prohibit) is a more appropriate starting point for future conversations about cyberspace governance.

Some of the other papers may also interest readers. I’m particularly partial to this one by Melissa Hathaway and John Savage, especially since John and I had many hours to discuss it while we both spent the day trapped in enjoying the fine offerings of Philadelphia’s International Airport.