There Shall be Order! A Proposal for More Structured Normativity on the Internet

by Matthias C. Kettemann

Can you recall a time before the Internet? When you read newspapers, called your friends on the landline and watched what the TV offered. Like everyone else? Things have changed considerably in this age of instant and self-curated news consumption and mediated personal relations management. The internet has evolved into a central space for societal interaction, both locally and globally. But new technology must also bring new law or mustn’t it? Law is indeed society’s most important medium to ensure order, rule and justice. Understanding the genesis, content and legitimation of legal and non-legal rules on the internet, and the constitution of the rule of the internet, thus becomes essential.

Norms for the hardware

The internet’ is not an ethereal subject of utopian normative projects and projections, it is merely a hardware-based data-transfer capability, running software based on protocols that ensure interconnectivity. Both – the internet’s public core and the servers necessary for it to function – are indispensable for critical infrastructure (e.g. power grids) to work and, in themselves, critical (information) infrastructure. Therefore safeguarding the internet’s integrity (its security, stability, robustness, resilience and functionality) in the common interest has evolved into an international legal obligation of states, individually and as members of the global community. This obligation is meant to mitigate by substantial societal risks incurred by states, their citizens and the private sector by misues of the internet and attacks against the integrity of the internet.

Actors on the internet fulfil diverse functions as norm entrepreneurs, norm appliers and norm enforcers. States, individuals and private sector companies create and execute, contest and confirm norms. Their genealogy, legitimacy and enforceability vary greatly: from private standards by standard-setting bodies and national constitutions to ius cogens norms. It is only through a careful analysis of the facticity and normativity of the rules applied on the internet in these interactions that a model of a comprehensive and nuanced normative order of the internet can be distilled. Importantly, this order – though conceived holistically with a unifying function – is hybrid in nature and is made up of international legal norms, national law and transnational regulatory arrangements. The order is nevertheless a legal order that operates through the form of law and analogously to it.

The normative order of the internet is decidedly not a hierarchical system of explicit norms in the Kelsenian tradition. There is no Grundnorm. It is rather a complex of norms, values and practices that relate to the use and development of the internet. Through the order the activities and interaction of different actors, including states, private companies and civil society, as they relate to, or are mediated by, the internet, are regulated, and the exercise of private or public authority and the distribution of basic goods, including internet access and access to internet content, is normatively framed. The normative order of the internet is thus the set of norms, normative expectations and legitimation narratives that shape the use and development of the internet.

It is a legitimate order, with its legitimacy proceduralized through normative processes that include all actors. The order is also legitimate in abstract because it is a necessary order. States alone cannot by themselves regulate the internet. International law provides a regulatory frame but is not detailed enough to regulate emerging online threats and technological challenges. Transnational arrangements remain too technical and vague to solve questions of distribution of basic goods. Taken together, however, the order’s norms secure the internet as a critical infrastructural resource and as equally critical for other essential infrastructures.

The normative order of the internet and national legal orders

National legal order progressively help constitutionalizing the normative order of the internet. They do so by legitimating ‘tertium’ norms, the category that includes standards and other transnational normative arrangements. This normative integration happens explicitly through laws, but also through informal integration

The normative order of the internet thus established, parsed and legitimized is both an empirical-conceptual and a normative construct: it provides legitimacy (and justification) narratives and functions as an elastic normative space, with principles and processes for solving public policy conflicts connected to safeguarding the internet’s integrity and protecting states and societies, natural and legal persons, from dangers related to internet use and misuse. It importantly includes the normative tertium and is thus a unifying theory. These transnational norms and normative arrangements transcend binary normative solutions and can counteract diffusions of regulatory responsibility in transnational settings.

There is order

Summing up: There is a normative order of the internet. The order is made up of international law, national law, and transnational regulatory arrangements of variable normativity. The order’s normativity shapes technicity. The internet’s forces of normative disorder can be identified and countered. The internet has taken a normative turn. This allows norms impacting its use and development to self-constitutionalize and – through autonomous normative processes – to develop and legitimize other norms within the order. The normative order of the internet is a legal and legitimate order which is connected to, and legitimated by, international and national legal processes. Briefly put: There is order on the Internet – namely a normativeorder of the Internet

Dr. Matthias C. Kettemann, LL.M. (Harvard), is head of the research program Regulatory Structures and the Emergence of Rules in Online Spaces at the Leibniz Institute for Media Research | Hans-Bredow-Institut (HBI), Affiliated Researcher at the Cluster of Excellence „Normative Orders”, University of Frankfurt am Main and lecturer at the Institute of International Law and International Relations, University of Graz, Austria. Latest book: Wagner/Kettemann/Vieth (eds.), Research Handbook on Human Rights and Digital Technology (Cheltenham: Edward Elgar, 2019). Latest Working Paper: Kettemann, Die normative Ordnung der Cyber-Sicherheit, Normative Orders Working Paper 01/2019. Recent research: cybersecurity, Internet Governance, international internet lawfreedom of expression, right to internet access, Network Enforcement Act (NetzDG)