Internet Governance and Democratic Legitimacy by Olivier Sylvain

Even as the Internet goes pop, federal policymakers continue to surrender their statutory obligation to regulate communications in the first instance to extralegal nongovernmental organizations comprised of technical experts. The FCC’s adjudication of a dispute concerning a major broadband service provider’s network management practices is a case in point. There, in the absence of any enforceable legislative or regulatory rule, the FCC turned principally to the transmission principles of the Internet Engineering Taskforce, the preeminent nongovernmental Internet engineering standard-setting organization.This impulse to defer as a matter of course to such an organization without any legal mechanism requiring as much is flawed. Of course, there is something to be said for an administrative regime that defers first-instance rulemaking authority on technologically complex matters to expert standard-setting organizations. Without more, however, such an approach fails to appreciate the unique role of communications in civic life. Historically, policymakers have required that electronic communications governance be addressed one way or another to the public and its institutional political processes, and not insulated from them. Similarly, today, policymakers, at a minimum, should be required to substantiate their hopeful assumption that the pertinent nongovernmental standard-setting organizations have democratically legitimated authority to regulate in the first instance.This Article is chiefly a critique of the prevailing “technological” and “economic” approaches to Internet governance. It then sketches a “participatory” approach that is attentive above all to civic-minded concerns outside of the competence of technological and economic expertise: namely, (1) universal access and (2) the circulation of issues of local and common concern.

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