Internet Governance and Democratic Legitimacy

Abstract

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 Federal Communications Commission’s conclusion that a major broadband service provider's network management practices were unreasonable is a case in point. There, in the absence of any decisive legislative or even regulatory guidance, the FCC turned principally to the engineering principles on which the Internet Engineering Task Force bases transmission standards: to wit, (1) decentralization, (2) interoperability, and (3) user empowerment. This impulse to defer as a matter of course to such an organization and its extralegal standards 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 standard-setting organizations comprised of experts. Without more, however, such an approach fails to appreciate the foundational and uniquely public nature of communications in democracy. Historically, policymakers have required that communications governance be addressed one way or another to the public and its institutional political processes, and not insulated from them. At a minimum, policymakers should be required to explicitly substantiate their hopeful assumption that the pertinent non-governmental 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.

Keywords: communications, telecommunications, Internet Engineering Task Force, Federal Communications Commission, Internet, unregulation, network neutrality, administrative law, communications, media, co-regulation, Communcations Act, Telecommunications Act of 1996, exceptionalism