New York Times columnist Thomas Friedman last week wrote an intriguing column titled "The Theory of Everything," in which he sought to explain the escalating global resentment toward the United States. Friedman suggested that throughout the 1990s the U.S. became exponentially more powerful economically, militarily, and technologically than the rest of the world.
As a result, U.S. global power over economics and culture has become so great that it deeply affects the lives of citizens worldwide — even more so than the policies of their own national governments.
Friedman concluded that the world is gradually awakening to its lack of influence over the power and policies that shape its citizens' lives, thereby leading to the divide between a single have and the rest of the world's have nots.
A similar theory may well apply to many of the policy conflicts surrounding Internet law issues. In recent years, the world has begun to grapple with Internet policies that are established in one jurisdiction (typically, though not solely, the U.S.), but applied worldwide. That policy imbalance has left many countries resentful of foreign dominance of the Internet.
Internet governance and the domain name system effectively illustrate this phenomenon. Recent battles over who governs the Internet's domain name system — the root server that ensures email travels to its intended destination and that Web sites remain accessible to a global Internet audience — often boil down to the U.S. on one side and the rest of the world on the other since the root server resides in Virginia and the U.S. government has left little doubt that it will not surrender control over it to the global community anytime soon.
Other countries therefore face a dilemma. While most acknowledge that the U.S. has done an admirable job of maintaining the stability of the domain name system, many also lament that the U.S. enjoys greater control over the Internet than does their national government, even within their own country.
A similar set of concerns has arisen within the context of domain name disputes. The U.S. Anticybersquatting Consumer Protection Act, enacted in 1999 to deal with cases of domain name cybersquatting, contains a provision that allows trademark holders to sue domain name registrants in U.S. courts regardless of where the domain name was registered.
That provision recently led one U.S. court to order the cancellation of a domain name owned by a Korean registrant despite the existence of a Korean court order prohibiting the cancellation. The U.S. court simply ruled that its decision trumped that of the Korean court, suggesting that U.S. law may enjoy greater control over domain name disputes in foreign countries than does local law.
Beyond domain names, copyright law has also led to policy clashes between countries. The U.S. Digital Millennium Copyright Act, which contains a "notice and takedown" system that shelters Internet service providers from liability for copyright infringement provided they promptly take down allegedly infringing content once notified of its existence on their systems, has been widely criticized for its broad reach.
ISPs in Canada and Australia have both reported that they regularly receive notice and takedown notifications from U.S. companies despite the fact that the U.S. law does not apply in those countries. ISPs ignore the requests at their own legal peril, since some are left with the sense that U.S. copyright law is fast becoming the global standard.
Despite the fact that countries such as Canada have enacted their own privacy legislation, privacy is yet another area where the influence of the U.S. and the European Union is felt locally. The U.S. Children's Online Privacy Protection Act, which applies to the collection of personal information from children under the age of 13, sits alongside Canadian privacy law since it provides that any Web site that targets U.S. children is subject to the law, regardless of the site's location.
The European Union has been similarly aggressive on privacy matters, enacting regulations that prohibit the transfer of personal data to any country that does not meet its standard for privacy protection. While Canada's statute obtained a favourable ruling in 2002, the E.U. has not hesitated to express reservations about the legal frameworks of many other countries.
Even the U.S. is not immune to policy influence from outside its borders. Free speech on the Internet, which typically enjoys greater protection in the U.S. than in most other jurisdictions, is viewed by some in the U.S. as coming under attack by foreign courts and regulators. For example, courts in France and Australia have asserted jurisdiction over U.S. publishers such as Yahoo! and Dow Jones, which both claimed that the speech in question would have been protected under U.S. law.
<>In the wake of these Internet policy conflicts, countries are left with three alternatives:
<> <>First, they may accept the status quo, resigned to a world in which national policy plays second fiddle to foreign policies that may not be in the national interest.
<>Second, they may follow the examples set by China and Saudi Arabia by diminishing the conflicts through the use of filters to block out controversial issues and Web sites, creating, in effect, an "Internet-lite" for their citizens.
<> <>Third, they may seek to navigate through the policy conflicts by adopting an approach that respects the sovereign choices of other countries and tries to limit differences through global consensus mechanisms.
Although the third alternative is clearly the most challenging, it may also represent the best hope for an Internet that embraces different cultural and social choices, rather than forcing a single, often unpopular, solution on an unsuspecting world.