Tying up a ‘Series of Tubes’,

Debating the United States’ Regulation

of the Internet
Jason Jordan Zane Schwarzlose Bryan Weber
Richardson High School University of Texas Houston Urban Debate
1st line of address 1331 Rolling Creek League
2nd line of address Spring Branch, Texas 1st line of address
1st author's email 78070 2nd line of address
address zaneryans@gmail.com 3rd E-mail

1. SUMMARY
We believe that the 2012-2013 high school CX debate topic should be:
“Resolved: That the United States Federal Government should
increase its regulation of the Internet.”
We’ll clarify.

2. INTRODUCTION
A lot of Americans use the Internet:

“A recent count put the number of Internet users in just the United States at
over 104 million; most (93 percent) use email and search the Web for
information (80 percent). Every day, 50 million Americans go online.
Researchers argue that the Internet is now a mainstream medium for nearly
every type of human communication, and one that, in the year 2000, achieved
“critical mass” in the United States.”

Hoffman, D. L., Novak, T. P., & Schlosser, A. E. (2003). Locus of Control, Web
Use, and Consumer Attitudes Toward Internet Regulation. Journal of Public
Policy & Marketing, 22(1), 41-57. Retrieved from EBSCOhost.

And the duty of regulating the Internet has largely fallen on the United
States. However, the United States has abdicated much of this power
in favor of self-regulatory regimes:

“Since the Internet was developed in the United States, and the country has
the largest number of Internet users, it is only natural that the American
government would be expected to take the lead in regulation. One of the
first official indications the world received about Internet regulation at the
international level from the United States was a call by President Clinton and
Vice-President Gore for self-regulation. While the concept of self-regulation
has historically occupied an important place in American mass media policy,
it was alien to most of the rest of the world. There are several definitions of
the concept of self-regulation. When applied to the Internet, it refers to the
role of the Internet community—namely, engineers, software developers,
 analysts, network specialists, administrators and users—in determining the
standards, protocols, codes of ethics and direction of the Internet, with
minimal government participation, input and control. The Clinton-Gore
framework was an exhaustive survey of the administration's policies with
regard to the Internet or the Global Information Infrastructure (GII). This
expression represented a globalization of the nomenclature of the Internet
from the term “Information Superhighway” proposed by Vice-President Gore
in 1994, and embodied in the National Information Infrastructure.
The Clinton-Gore framework for global electronic commerce
acknowledged that the Internet had transformed the world into a planetary
plaza. The two leaders argued that the Internet, this global network of
networks, would thrive for the benefit of all people if it were allowed to
regulate itself. The framework was a unique, unprecedented document in
that, on the one hand, it was a diplomatic message addressed to
governments around the world, and, on the other hand, an executive order
addressed to a number of departments of the American government. In the
framework, President Clinton said in part that the actions of governments can
have a profound effect on the growth of electronic commerce. He therefore
appealed to governments around the world to act with restraint, “knowing
when to act and… when not to act” is important in matters of Internet
regulation. Clinton and Gore called on governments to adopt a market-
oriented approach to the Internet and appealed to the industry to regulate
itself. This self-regulation model soon became the de facto Internet
regulation standard at the national and international levels.”

Eko, L. (2001). Many Spiders, One Worldwide Web: Towards a Typology of

Internet Regulation. Communication Law & Policy, 6(3), 445-484. Retrieved
from EBSCOhost.

But our honeymoon with this free-wheelin’ Internet has ended:

countries are disenchanted with the digital Wild West and are
attempting to regulate the Internet. This is the state of the Internet:

“But then the tide reversed. Then came libel originating in distant countries,
stock manipulation from afar, worldwide domain name cybersquatting, sales
tax circumvention by citizens purchasing faraway goods, hate speech
websites located in countries protecting this kind of expression, online
casinos based within the territory of states encouraging this business as it
would almost exclusively affect foreign people in foreign countries while
generating tax revenues, and worse.
The dark side of the Web manifested itself, and it triggered a
movement for cultural and nationalistic withdrawal. People started to say that
they did not want outlandish foreigners to do the equivalent of standing in
the garden in front of their house doing things that are regarded with outright
repugnance in their community. The French were anxious at the thought of
there being, just around the corner, defiant Americans believing it is their
fundamental right to say whatever they want to say, even if it involves an
apology for Nazism.
In the United States, people were incensed about lax foreign
governments not cracking down on online casinos, which were intruding into
American homes and offices, computers, and mobile phones, to fuel
compulsive gambling.
Many countries became concerned about incitements to terrorism and
appeals to fund terrorist organizations flowing into their country simply by
 dint of being globally accessible. Some governments began to consider
blocking by technical means local residents’ access to foreign Internet
sources that glorify terrorism.
Other governments grew increasingly apprehensive about the West
spreading its culture and values throughout the world by a mere information
transfer into territories which were previously exposed mainly to local
information. Suddenly, the free and global character of the Internet started to
be considered an evil. The global Internet community started to think that,
after all, it did not want to be a single community, but several, and that each
community should be allowed to live according to its internal fundamental
values, according to its own choices of public policy (in the sense of ordre
public), which partake of the expression of each nation’s Volksgeist .
The Internet should be free, most agreed, but only insofar as this
freedom stopped short of violating the fundamental principles underlying the
operation of each state’s legal system. The ‘ancient principles governing law
and politics within nations’ were being challenged.”

[Carving up the Internet]

3. HOW THE INTERNET IS REGULATED

Many readers of this paper will be surprised to learn that the Internet
is regulated. It is.

3.1 Lessig’s Framework

Lawrence Lessig, a professor at the Harvard Law School, once
proposed a framework that posited four ways to regulate the Internet.
These four forces would be the affirmative plan mechanisms under
this topic:

“Lessig’s framework identifies four forces that regulate or constrain an object

(e.g. the Internet). They are: the law, markets, norms, and architecture. Each
of these regulators has the following unique properties:
1. Law constrains by defining a command that, if broken, threatens
punishment. Law is imposed by a state.
2. Markets regulate through price. The market regulator is immediate —it is
characterized by a direct monetary exchange.
3. A social norm regulates through a stigma that a community (not a state)
imposes. Deviation from a norm makes you socially abnormal, which can
have negative affects, such as alienation from a community.
4. Architecture (or “code”) regulates through the physical burden it imposes.
It is imposed immediately and automatically by its very design.”

Best, Michael L. and Wade, Keegan W. 'Democratic and Anti-Democratic

Regulators of the Internet: A Framework', The Information Society, 23:5, 405 -
411

3.2 ICANN
Another more specific plan enforcement mechanism can be found in
the United States’ relationship with The Internet Corporation for
Assigned Names and Numbers, or ICANN. ICANN was created by the
United States in 1998:
 “The Internet Corporation for Assigned Names and Numbers (ICANN)
coordinates the Internet’s technical function, essentially serving as its
manager. The non-profit corporation was created in 1998, under the auspices
of the U.S. Department of Commerce, to assume control of the Internet
domain name system (DNS). The DNS is a global, distributed database that
translates easy - to - remember mnemonic addresses, like
www.digitalmedialaw.us , into numerical identifier, like 213.86.83.116, that
computers can use to locate websites and deliver e - mail.
Each numerical identifier – called an Internet Protocol address – leads
to one computer, the way a telephone number points to one phone. ICANN
ensures that domain names and their corresponding IP addresses are
globally unique, so the same address always leads to the same location.
ICANN is also responsible for the delegation of top - level domain (TLD)
names, like .com, .net, and .org, and country codes, like .us or .uk. It
accredits both the registries assigned to manage particular top - level
domains (like Verisign, which is responsible for housing all of the domains
ending in .com, .net, and .tv in its databases) and the companies that register
individual domain names. The Commerce Department has consistently
maintained that its eventual goal was to release ICANN from government
supervision as soon as it is ready to stand on its own. The original target date
for independence was 2000. In Sept. 30, 2009, the U.S. government signed a
new agreement with ICANN giving up unilateral control of the organization.”
[Digital Media Law]

Even though the United States has ceded its control over the ICANN,
American could still seize control of the ICANN. However, such a move
would be politically unpopular:

“There is a difference, though, between ICANN and a truly international body.

Currently, the federal government retains formal oversight over ICANN
through the contractual relationship between the Department of Commerce
and ICANN as spelled out in the Memorandum of Understanding. Congress
could, if it desired, reassert regulatory control over naming and numbering,
either by mandating that ICANN adhere to certain specific policies or by
taking the power over naming and numbering away from ICANN altogether.
Reasserting national control would be much more difficult once naming and
numbering had been delegated to an international body. It would require
that the United States break or leave an international regime. To be sure,
such a move is not without precedent in recent history, but it comes at a
cost. In relative terms and from the vantage point of the U.S. government, it
is therefore preferable to avoid formal delegation in the first place.
This argument is somewhat flawed, as even under the current regime, any
attempt by the U.S. government to influence policy-making at ICANN causes
significant negative international public opinion and fuels those voices that
call for a complete internationalization of Internet governance. Thus, even if
the United States may prefer to retain formal control over ICANN, in practice,
it may find itself in the role of Swift’s Gulliver – powerful in theory, but bound
in practice.”

[Jefferson Rebuffed: the United States]

3.3 The Commerce Clause
The legitimacy of affirmative’s state action will stem from the
Commerce Clause of the Constitution:
“The United States is a case in point. The regulation of commerce is part of
the American constitutional and economic schemes. The Commerce Clause
of the United States Constitution gives Congress the power to regulate
interstate commerce, that is, all commerce that includes more than one
state. Congressional oversight extends to the channels (instrumentalities) or
infrastructure of interstate commerce. Other constitutional provisions
concerning foreign trade reinforce the national interest in commerce. The
American constitutional plan of international affairs seems to reflect the
framers' intent to create a national common market and free-trade zone to
buttress the country's capitalist free-market economy. Although Congress
may have the power to exclude goods or activities that have been
determined to be detrimental to public health, safety, welfare or morality, the
Constitution seems designed to stimulate aggressive commerce. Since the
Internet represents the convergence of various types of communication
media, its regulation falls squarely within the rights of Congress. This is the
constitutional foundation of American neo-merchantilist Internet
regulation.”

Eko, L. (2001). Many Spiders, One Worldwide Web: Towards a Typology of

Internet Regulation. Communication Law & Policy, 6(3), 445-484. Retrieved
from EBSCOhost.

3.4 The Limit of the United States’ Jurisdiction

Even though the United States has a constitutional foundation for
domestic regulation of the Internet, any legitimate international
jurisdiction that America has over the Internet is hamstringed by its
ability to enforce such regulations:

“In reality the problem is less severe than this general view suggests. This is
so because, as Jack Goldsmith observes, enforcement jurisdiction is not
affected by this overlapping of a large number of laws. Enforcement
jurisdiction, one may recall, is the authority actually to enforce the law by
inducing or compelling compliance with it.
It is what gives regulation its teeth and makes it effective. This form
of jurisdiction has a strictly territorial basis, which means that in the absence
of extradition, which is unlikely to be granted with respect to the vast
majority of Internet matters, a state can enforce its laws only against in-state
actors, against entities with a presence on the territory of the state or with
assets there. The distinction between prescriptive and adjudicative
jurisdiction, on the one hand, and enforcement jurisdiction, on the other, is
what allowed Joseph Story, almost 200 years ago, to maintain that ‘
whatever force and obligation the laws of one country have in another,
depends solely upon [the latter’s] own express or tacit consent ’ .
It means that providers of Internet content need to worry mainly about
the regulations of the states in which they have a presence or assets.
Enforcement jurisdiction acts as a limiting factor, reducing the overlapping of
directly effective regulations to the various states where Internet actors
have a presence or assets, which falls somewhere short of all the nations of
the entire world. The submission of Internet actors to a worldwide range of
 paper rules may be true, but their submission to effective rules is far more
limited.”

[Carving up the Internet]

3.5 International Modeling

The United States might not have direct control over the Internet, but
affirmatives will be able to make international advantage claims
stemming from the United States’ role as de facto guardian of the
Internet:
“The phenomenal growth, extreme decentralization and diffusion of the
stateless Internet from its center of origin in the United States to the
peripheral areas of the globe have virtually eliminated geographical
boundaries and put question marks over sacrosanct traditional international
legal concepts such as national sovereignty and jurisdiction. The regulatory
frameworks engendered around the world by the Internet are redefining the
concept of sovereignty, not usually to the liking of most states. Billions of
bytes of data are sent across national borders countless times every day
without the authorization of the countries concerned, raising issues of
sovereignty, jurisdiction and territorial integrity. In addition, since the largest
proportion of Internet activity takes place in the United States, Congress and
the Supreme Court are increasingly being seen as the de facto regulators of
the Internet for the rest of the world.”

[Dark clouds over the Internet]

4. AFFIRMATIVE CASE AREAS

Reasons for increasing the United States’ regulation of the Internet
are numerous:

“There are three distinct domains in which the Internet may need
governance—that is, intentional and legitimate ordering. Each serves distinct
purposes and requires different kinds of processes and methods, so it is vital
to distinguish between them in order to develop high-level rules and
procedures. The first is technical standardization. This involves reaching
agreement about networking protocols and data formats and documenting
these agreements. Because standards structure the behavior of machines
and people, it is useful to consider them as part of an intentional ordering
process. The second is resource allocation and assignment. In the case of the
Internet, this means virtual resources—Internet identifiers such as domain
names and IP addresses, as well as protocol port numbers. These identifiers
require exclusive use, because they must be unique and exclusive to
function properly as an address. Resources may also be scarce and require
rationing. Allocation and assignment processes coordinate the distribution of
Internet resources to users, to maintain uniqueness and/or to ration
consumption. The third area of governance is human conduct, which is
governed by defining and enforcing regulations, laws, and policies. Whereas
the first two governance functions are concerned with the specification or
coordination of the technical system, the governance of human conduct
orders the actions of people. It includes global public policy for such areas as
spam, cybercrime, copyright and trademark disputes, consumer protection
issues, and public and private security. “
 [The Internet and Global Governance]

We believe affirmatives will tarry in the third area of regulation.

4.1 Net Neutrality

Net Neutrality is a principle which states Internet Service Providers
(ISPs) shouldn’t restrict the quality or quantity of the content that their
users access. The arguments for and against net neutrality can be
summarized thusly:

“Over the past years, the merits of network neutrality regulation have
become a hot topic in telecommunications policy debates. Repeatedly,
proponents of network neutrality regulation have asked the Federal
Communications Commission to impose rules on the operators of broadband
access networks that forbid network operators to discriminate against third-
party applications, content or portals (“independent applications”) and to
exclude them from their network.
These proposals are based on the concern that in the absence of such
regulation, network operators may discriminate against these products and
that this behavior may reduce innovation by providers of these products to
the detriment of society.
Opponents of regulation deny the need for network neutrality
regulation.
They argue that regulation is not necessary because network
operators do not have an incentive to discriminate against independent
applications anyway, or, alternatively, that regulation is harmful because it
would reduce network operators’ incentive to upgrade their networks in the
future.”
[towards an economic framework for network neutrality]

However, detractors of net neutrality say that regulation could stop

innovation:

“Net neutrality regulation is also likely to reduce innovation in both the

development network infrastructure and the provision of Internet-based
content. Proponents of net neutrality regulation have tried to co-opt the
innovation argument by contending that small content-providers at the fringe
of the network will be less innovative as a result of contracting for Quality of
Service (with positive prices). Taken to its logical conclusion, however, this
argument implies that Internet access should be provided free of charge to
all content providers to maximize fringe innovation. But this argument
assumes that the network infrastructure of the Internet is simply a
commodity product that can be supplied by a number of fungible BSPs (Basic
Service Providers). It ignores the fact that both the initial establishment of the
network and its ongoing management require significant investment.
Because innovation occurs at both the content level and the network level,
the following economic considerations must be taken into account in
contemplating the outcome of a broad discrimination standard.”
[Addressing the Next Wave of Internet Regulation]

The following describes a sample regulation that affirmatives could

place on Internet providers:
 “A government agency could, for instance, set a minimum price for IPTransit.
Following the Bertrand argument, this minimum price would quickly turn out
to be the new equilibrium market price. Of course, calculating the ”right”
price would be a huge challenge, but the FCC has already gained some
experience in such calculations while regulating retail prices both for
telephone and Internet lines.
As infrastructure investments exhibit positive externalities, the FCC
would have to provide top-level networks with appropriate incentives for
investing. One way would be to set up a Capacity Fund—similar in structure
to the Universal Service Fund described in Laffont & Tirole (2000) according
to which the FCC would ”tax” the premiums mentioned above to endow the
fund with financial resources. This money would be redistributed to the Tier 1
networks, but not on a pro rata basis but based on the outcome of a
tournament. The main criterion of the tournament would be the
interconnection qualities of the participating networks, i.e. a technical,
comparably objective measurement which can be obtained accurately with
relative ease. Using this criterion, while optimizing additional costs for
infrastructure on an individual basis, network operators would internalize a
part of the externality they create, if only because higher infrastructure
investments would increase the likelihood of gaining a larger share of the
fund.”
[Dark Clouds over the Internet]

4.2 Gambling
Gambling is big business for the Internet:

“While at least 50 countries consider gambling on the Internet to be a legal

activity, the United States does not. In the past decade, the industry has
grown considerably. There are now approximately 2,000 online gambling
sites, operating oversees, particularly in Europe, the Caribbean, and the
Asian/Pacific rim. Ironically, their customer base is largely drawn from the
United States. In 2005, online gaming generated $12 billion in revenue, half
of which came from U.S. customers, according to a report conducted by Peter
D. Hart Research Associates for the American Gaming Association (AGA).
That figure is projected to double by 2010.
Although federal law does not directly prohibit U.S. citizens from
gambling online, Congress has attempted to curtail the practice by passing
legislation that prohibits businesses from taking bets online and banks from
accepting payments from online gambling operations. State law generally
determines whether a state’s residents can legally engage in gambling
activities. A person who lives in a state that makes gambling illegal would be
violating the law by betting online even if the online casino is located outside
the state. At least six states specifically address Internet gambling (Illinois,
Louisiana, Nevada, Oregon, South Dakota, Washington).
Other states simply apply existing gambling laws to the Internet. But
because most gambling crosses state and foreign borders, federal laws are
more applicable. In 2006, Congress passed the Unlawful Internet Gambling
Enforcement Act, which applied to Internet wagers on sporting events as well
as bets through online casinos. The statute prohibits gambling businesses
from accepting credit cards, electronic fund transfers, checks, or drafts from
Internet customers. It also directs the Federal Reserve, in consultation with
the Attorney General, to prescribe regulations to require banks to identify
and block financial transactions associated with Internet gambling. “
 [Digital Media Law]

Affirmatives could use a variety of tactics to stop this illegal activity.

However, the regulation of Internet gambling also gives a good

example of how affirmatives could lead to trade disputes:

“International economic law, however, may impose limits on the use of an

electronic border for enforcement purposes. The Agreement Establishing the
World Trade Organization sets out substantive obligations for signatory
states to allow cross-border services and information flows. Antigua’s recent
case against the United States, though, suggests that the WTO constraints
will affect the legitimacy of the underlying rules rather than the choice of
enforcement mechanisms themselves.
Antigua was a haven for Internet gambling operations that faced a
substantial loss of business in the United States as a result of U.S. legislation
outlawing non-U.S.-licensed operations. Antigua filed a complaint with the
WTO against the United States alleging that U.S. laws restricting Internet
gambling were in violation of U.S. trade obligations relating to the cross-
border supply of services.
The case is interesting because it addresses the legitimacy of the
gambling laws themselves and whether the WTO rules bar the substantive
provisions of U.S. law. If the final ruling in the case determines that U.S.
substantive law contravenes the WTO obligations that the United States
accepted, then any enforcement by the United States of the Internet
gambling laws would not be a legitimate exercise of state power.
International economic law, thus, constrains the state’s underlying decisions
on rules and policies rather than the choice of enforcement instruments if the
decisions and policies are legitimate.”
[Technology and Internet Jurisdiction]

4.3 Child Pornography

The Internet is uniquely situated to aid child sex offenders.

“Digital information contained within the Internet is not located or stored at

one single point and is not administered by any one person or group, and so
by its nature is uncontrollable by a single regulatory body. As such, the
Internet has a number of uses and potential, and very real, misuses. Durkin
(1997) proposes three ways in which the Internet can be utilized by sex
offenders: (1) to disseminate images for personal and/or commercial reasons;
(2) to establish and engage in social networks with other individuals who
have a sexual interest in children; and (3) to engage in inappropriate sexual
communication with children and/or to locate children to abuse. In addition,
Lanning (2001) suggests that abusive images downloaded from the Internet
may be used to desensitize and/or lower inhibitions in an offender or victim
prior to or during an offense. It is worth noting that the Internet might also
serve as a method for covertly breaking probation restrictions regarding
access to children for those individuals who already have convictions for
child molestation.”
[The Internet and child sexual offending: A criminological review]
Affirmatives will be able to institute regulations to stop these
practices.

4.4 Cybercrime
Cybercrime will be a large case area. Readers will probably most
familiar with the use of viruses and worms to cause economic
damage:

“In 2008, the Computer Security Institute found that almost half of the 522
respondents to its annual Computer Crime and Security Survey experienced
a computer crime in the previous year.
Most frequently, organizations were the victims of malware –software
maliciously designed to harm other computers. The most common forms of
malware are worms and viruses. A computer virus is a parasitic program that
attaches itself to another application. When it is activated, it self-replicates
and spreads throughout a computer system and then, via shared files, to
other computers. Some viruses are simply pranks that spread strange
messages or pictures. Others do serious damage by erasing data and
corrupting hard drives. Computer worms engage in the same malicious
behavior, but do so independently. The essential difference between them is
that worms do not need a host application. Viruses and worms are most
commonly spread through e - mail attachments, links to infected websites,
P2P file sharing, and free software downloads from the Internet.”
[Digital Media Law, Ashley Packer]

And, one virus can cause billions of dollars of damage:

In May 2000, Onel de Guzman, a 23-year-old student at the Amabel Mendoza

Aquiluz Computer College in the slums of Manila, the Philippines, created an
e-mail borne virus named “ILOVE YOU,” and unleashed it on an unsuspecting
world through the Internet. The self-replicating virus or worm spread rapidly,
infecting computers and destroying data in computer systems and networks
around the globe. The disruption and damage caused by the “ILOVE YOU”
virus amounted to billions of dollars. Governments around the world were
alarmed. The United States Congress held a number of hearings and some
countries, which had had no laws against making and disseminating
computer viruses and computer hacking prior to the attack, passed
legislation to address the problem. Onel de Guzman was arrested a few
weeks later by Philippines authorities, under pressure from the American
government, but officials had no choice but to release him because there was
no law against the creation of computer viruses and computer hacking in the
Philippines.
The “ILOVE YOU” computer virus brought the age of instantaneous
global electronic communication crashing into the lives and businesses of
millions of people around the world. Oriel de Guzman's infamous “love letter”
from the slums of Manila was a vivid, but very expensive demonstration of
the new interconnectedness of communications infrastructure and networks
around the globe.
[Many spiders, one worldwide web]
5. NEGATIVE POSITIONS
This topic offers a variety of on-case and off-case negative positions.

5.1 On-Case Arguments

First, negative teams could argue that substantial regulations are
already addressing the problem:

Computer fraud is prohibited by 18 U.S.C. 1030. The statute makes it a felony

offense to hack into a protected computer, transmit a virus, or traffic in
computer passwords. A protected computer is one used in interstate or
foreign commerce, located in or outside the United States, or one used by the
U.S. government or a financial institution. Specifically, the statute prohibits
intentionally accessing a computer without authorization or exceeding
authorized access to obtain information from any protected computer if the
conduct involves an interstate or foreign communication. The Act also
criminalizes knowingly causing “the transmission of a program, information,
code, or command” that intentionally causes damage to a protected
computer or “trafficking in any password or similar information through which
a computer may be accessed without authorization.” The punishment for
unauthorized access is normally a fine or up to one year in prison. It
increases to five years if the unauthorized access is for commercial
advantage, furthers another tortious act, or the value of the information
obtained exceeds $5,000. The statue also entitles those who suffer damage
or loss due to behavior prohibited by the Act to file a civil suit against the
violator.
[Digital Media Law]

Another solvency argument could be that unwanted activity will

merely move to another country:

But even if we do not need perfect enforcement, the opponents argue back,
we will still require sufficient enforcement to discourage the few among us
who will not adhere to a rule on their own; and even sufficient enforcement is
unlikely in global cyberspace.
Whenever, for example, an information provider is threatened by a
regulation in one state, it just needs to relocate the potentially violating
information to another jurisdiction with a more favorable regulation. Given
the market forces in a global network, over time certain states will turn their
liberal regulatory regimes into a competitive advantage, in essence offering
to providers of questionable content flags of convenience in the sea of
information called the Internet.
As Frances Cairncross put it, cyberspace causes the “death of
distance.” It ridicules traditional national borders and boundaries.
[The shape of governance: Analyzing]

Furthermore, programmers could use code to evade regulations:

The Web as a social space is not subject to physical constraints. The

affordances of its users are created and constrained by the Web’s
architecture, which is engrained in software code.
 The architecture is the result of many loosely coordinated and at
times controversial decisions taken by the designers of the Internet and the
creators of its many applications.
This fundamental difference between the regulation of physical
space and the regulation of the Internet poses a challenge for traditional
regulators: The regulated subjects can avoid regulation by “coding around
it”. This phenomenon can be nicely seen in the development of file-sharing
applications and protocols: the coders of these tools were fast to
“implement” the court orders by adjusting the design of their tools to escape
liability.
The global nature of the Web makes avoiding regulation by changing
the jurisdiction for web sites is as easy as a few clicks, a popular ploy among
the senders of spam, and phishing emails.
[ Designing effective regulation for the "Dark side" of the Web]

5.2 Disadvantages
The traditional disadvantages for a domestic topic will apply to this
one. But, negatives would also be able to link increased content
restrictions for America to more stringent requirements for those
abroad:

“Internet filtering occurs in different ways in different parts of the world.

Some states implement a software application developed by one of a small
handful of United States-based technology providers. Burma, in the first
incarnation of its filtering regime, used an open source product for filtering,
called DansGuardian. Others rely less heavily on technology solutions and
more extensively on “soft controls.” Sometimes the filtering regime is
supported explicitly by the state’s legal code; in other cases, the filtering
regime is carried out through a national security authority. In yet other
instances, the regulation is simply presumed to be permissible. The content
blocked spans a wide range of social, religious, and political information. Our
studies have combined a review of whether individual citizens could access
sites in a “global basket” of bellwether sites to test in every jurisdiction
across a variety of sensitive areas – akin to a stock index sorted by sector—
as well as a list of Web sites likely to be sensitive only in some countries.”
[Four phases of Internet regulation]

This could lead to several interesting international scenarios for

disadvantages.

5.3 Counterplans
Other actors could implement affirmatives’ plans. For example, many
scholars are unconvinced that national action is the answer to the
Internet’s woes:

“Traditionalists begin by stating that the preeminent existing governance

agency, the state, is the appropriate regulator of cyberspace. After all, the
state has the democratic legitimization, the procedural setup, and the
institutional enforcement to make regulations, including ones pertaining to
cyberspace, work.
The opponents of national laws regulating cyberspace contest this
assumption that the state is the best agency to regulate cyberspace. They
 point out that any national law applied to cyberspace will lack the necessary
democratic legitimacy on a global network. Why, they ask, should anyone
operating in cyberspace be subject to a cyber-regulation in whose
enactment she did not partake even in the most indirect way? Isn’t
democratic legitimization all about taking part in the political process?
Further, if each and every national law on the face of the earth is
applied to conduct in cyberspace, then people interacting on the Net would
potentially have to obey hundreds of different, potentially even contradictory
regulations at the same time.
In the words of The Economist , reporting on an American online service
provider’s decision to bar its customers from accessing parts of the Internet
because of a Bavarian prosecution alleging a violation of German law, ‘when
Bavaria wrinkles its nose, must the whole world catch a cold?’”
[The Shape of governance: Analyzing]

Instead, some authors propose that control of the Internet is best left
to private actors:

But there is a second flavor of cyber-separatism, quite apart from Barlow’s

extreme approach. Its proponents do not argue for the formal regulatory void
of the cyberanarchists. Instead they aim for self-regulation of cyberspace.
They point out that any free society must be governed only by its own
rules. In their arguments, they recall the plight of the Founding Fathers and
their fight for independence and self-rule.
They reason that subjecting people in cyberspace to rules conceived
outside of it necessarily involves the enforcement of rules devised by one
society against members of another, thus contradicting the fundamental
principle of self-government. Cyberspace, it is argued, needs to be governed,
but not by some distant, unaffected national legislature (again evoking
powerful historical metaphors of American suffering under the British Crown);
rather, it should be governed by the people who are actually affected, the
people interacting in cyberspace: the netizens themselves. Self-regulation,
they argue, is the single best way to ensure the legitimacy of governance.
[The shape of governance: Analyzing]

6. CRITICAL ISSUES

6.1 Specific Negative Strategies and Selected Responses

While the proposed topic will allow negative teams to critique many of
the same pre-fiat and post-fiat implications of affirmative plans (threat
construction, statism, spectatorship, general lines of Nietzschean
critique, etc.) several topic-unique trajectories of critique will be
elucidated and discussed below.

6.1.1 Freedoms and Rights

Negative teams will be able to claim that efforts to regulate the
Internet constitute an undermining of basic rights:

“The United States has weathered one major federal attack on the Internet
in the form of the Communications Decency Act of 1996, which was declared
 unconstitutional. The U.S. is in the enviable position of being the only country
that has a constitutional guarantee of freedom of speech.”
Paper invited for the International Conference:Freedom of Expression,
Censorship, Libraries, Riga, Latvia, October 14-17 1998 Who Censors the
Internetand Why Jana Varlejs, Associate Professor Rutgers School of
Communication, Information and Library StudiesNew Brunswick, New Jersey,
USA

Furthermore, negative teams will be able to indict the undermining of

basic rights of speech as motivated by drives of fear and protection:

“Overall, one can say that the instinct to censor is quite universal, and that
the stated aim is protection -- of children, of cultural values, of government
stability, and so on. The objective is to maintain control. But why is there this
need to be protective, to be in control? Perhaps underlying this instinct is the
more basic one of fear. As Godwin puts it in his discussion of why the
"Communications Decency Act" was passed by the United States Congress,
It’s that the theocratic right is driven by an irrational fear -- a fear that the
citizens and Congress can’t be trusted to do the right thing if they’re
presented with unvarnished, unmanufactured facts (Godwin, 1998, p. 301).
Across the world, similar fears seem to drive the censors, suggesting a
mistrust of free speech and people’s ability to deal with it rationally, and
perhaps an unacknowledged lack of confidence on the part of the censor in
his her own infallibility.”
Paper invited for the International Conference:Freedom of Expression,
Censorship, Libraries, Riga, Latvia, October 14-17 1998 Who Censors the
Internetand Why Jana Varlejs, Associate Professor

Such theoretical linkages will allow debaters to develop critical

implications predicated upon the works of James Der Derian (1998) as
well as Gerorgio Agamben (1998, 2000).

Conversely, affirmative teams will be able to access impact turns

pertaining to hate-speech and international perception:

“Both public/market pressure and parent-controlled filters represent opposite

ends of the Internet regulation spectrum. At one end, network hosts are
pushed to restrict online hate by public/market pressure, and at the other
end, the network users vulnerable to such content are shielded from such
content through parent-controlled filtering systems. Although neither of
these are permanent solutions to the problem of online hate speech, both are
effective and practical ways of dealing with it until international consensus
on regulation can be achieved. The United States should not bury its head
in the sand and continue to disregard the concerns of the international
community. If nothing else, it must consider the implications of becoming a
safe haven for hate mongers around the world. The Oklahoma City bombing
and the Columbine shooting serve as horrific testaments to the deadly
consequences linked to Internet hate, and they lend credence to the
international community’s concern regarding such speech online. According
to current Supreme Court doctrine, hate speech cannot be regulated based
on its content unless it falls into one of the unprotected categories of speech.
This leaves the United States in a seemingly intractable situation, both
domestically and internationally: either accept the likely violent and
 otherwise injurious ramifications associated with protecting hate speech or
agree to some type of international regulation of such speech and chip
away at the most basic First Amendment protection of expression. In
response to this dilemma, it is clear that, in order to minimize the likelihood
of future acts of hate-related violence, the United States must engage the
world and actively attempt to find a reasonable solution to Internet hate
speech. An international regime of ratings and filters may be the most
effective way of combating online hate, as such a system responds to the
differing parameters of each nation. Unfortunately, the creation of such a
regime is unlikely to occur soon, and the spread of hate is occurring now.
Although interim solutions, such as public/market pressure and parent-
controlled filtering systems, can limit the reach of hate temporarily, it is
apparent that long-term international solutions are the only way to stem the
rising tide of hate. “
A HAVEN FOR HATE: THE FOREIGN AND DOMESTIC IMPLICATIONS OF
PROTECTING INTERNET HATE SPEECH UNDER THE FIRST AMENDMENT PETER
J. BRECKHEIMER II* Class of 2002, University of Southern California Law
School; B.A. University of Southern California. SOUTHERN CALIFORNIA LAW
REVIEW [Vol. 75:1493] 1527-1528

6.1.2 Borders
Negative teams will be able to argue that regulation of the Internet
creates new ‘borders’ within a previously ‘open’ space:

“Thus, the Internet will inevitably transform from a relatively borderless

dimension into a medium that takes account of geo-graphical and legal
borders. Such a development seem particularly unavoidable when
considering how geo-location technologies (as part of architecture/code)
affects, and is affected by, the three other forms of regulation. Furthermore,
in light of such a development, current "effect-focused" conflict of laws rules
may make sense. In other words, from the perspective of Internet
regulation, geo-location technologies may, to a large extent, eliminate the
regulatory difficulties associated with the Internet’s "borderlessness."”
Dan Jerker B. Svantesson. (2004) "Geo-location technologies and other
means of placing borders on the ‘borderless’ Internet",, .
http://epublications.bond.edu.au/law_pubs/63 (p. 37)

Such notions of ‘bordered’ thought and action suggest various

trajectories of critical engagement including the work of Michael
Shapiro (1997) and Gloria Anzaldua (1987).

6.1.3 Foucauldian Critiques

The proposed topic lends itself to critical argumentation from a variety
of trajectories informed by the corpus of work produced and/or
inspired by Michel Foucault.

Negative teams seeking to critique affirmative plans from a Foucaldian

perspective will be able to cite good links to Foucault’s critique of
power: Negative teams will also be able to link affirmative cases to
notions of ‘Surveillance’ and ‘Control’:
 “Foucault’s critique of the Panopticon has been widely adapted to the context
of the Internet. Mark Poster has, for example, labelled the Internet a
“Superpanopticon” and Oscar Gandy has coined the phrase “Panoptic Sort”
to describe the way that the Internet can locate and sort personal
information. This section will outline these arguments that the Internet is a
modern Panopticon. Robins and Webster argue that the Internet enforces
social discipline in the manner of the Panopticon by the force of the
‘information revolution’ having deemed that social and cultural
enfranchisement requires households to own a wide variety of
communication technology such as the Internet, and that this expectation
disciplines individuals into spending leisure time acquiring material goods
and spending money in order to feed the capitalist economy. An alternative
critique is that the Internet disciplines by the way in which users are aware of
a capacity for their activities to be monitored- either by their emails or web-
browsing history being monitored at their workplace, ISPs examining viewing
history, or by states enforcing laws to punish those who access certain
content. The result of this ever-present threat of surveillance, or
“dataveillance” it is proposed, is that it inhibits individual decision-making
and creates self-censorship. Notably, it is the target of surveillance who
initiates this cycle, not only by signing onto database services or becoming a
member of a site, but simply by entering cyberspace. The notion of the
Internet’s capacity to ‘observe’ derives from the concept of the ‘Panoptic
sort’ which is empowered by the convergence of bureaucratic and
commercial databases. Statements such as that from the CEO of Sun
Microsystems that “you have zero privacy- get over it”, gives credence to
Internet user scepticism about the way that their information is being used.
Gandy argues that this ‘Panoptic sort’ identifies, classifies and assesses
personal information. The reality of this scenario is made clear by cases of
consumer profile databases being sold to companies and marketers or by
states enforcing laws to punish those who access certain content.”
The ‘Strategic Value’ of Online Anonymity By Madeleine Mispel Market
mindset? (Page 14)

The implications of such critical engagement with Internet regulation

pre-suppose implications deriving from both Foucault’s extensive
writings on power/knowledge and also the seminal work Discipline and
Punish.

Finally, as with many other elements of the proposed topic, teams will
be able to cite good empirics of the critical implications of Internet
regulation:

“The disciplinary power of panopticism is often productive as opposed to

being experienced as repressive. To appease those who feel uneasy under
surveillance, its proponents often state the benefits, such as upholding social
norms by regulating pornography or providing a sense of security. Especially
after 9-11, people in the U.S. are willing to trade certain rights and liberties
for safety and a sense of security.’ An oft-quoted proverb used to justify
surveillance is that, if you have nothing to hide, you have nothing to fear. In a
similar manner, the indignation China feels with regard to its role in the world
has significant implications for the way Internet regulation is justified. It is
not uncommon to hear calls for regulation of the Internet, seen by some
as the latest proponent of Western imperialism. Chat programs and
 videogames are likened to electronic opium, to justify regulation and
surveillance practices. Social norms enhance the span of the Panopticon,
making the gaze absolute and reaching out to the most remote sections of
society.” (p. 72)

(Author continues, pg. 76-77)

“The Internet was initially designed with an open, decentralized, and

libertarian spirit in mind. Lessig argues that this is changing fast, due to the
market, which increasingly seeks to regulate and determine the development
of the Internet. The four modalities of control exemplify how panopticism is
the imperative modus for Internet regulation in China. As explained by
Michel Foucault, panopticism illustrates how normalization of behavior is
achieved by surveillance practices, where the subjects are at the same time
implicated as both the bearers and the effects of disciplinary power. In his
own words: power is employed and exercised through a net-like organization.
And not only do individuals circulate between its threads; they are always in
the position of simultaneously undergoing and exercising power ... The
individual ... is not the vis-a-vis of power; it is I believe, one of its prime
effects. 58 Panopticism thus leads to a high degree of self-censorship and
self-regulation, further enforced by the law, which stipulates that everybody
is responsible for what s/he publishes online. Furthermore, the most crucial
regulation is the requirement that users connect through a government-
controlled international gateway for foreign traffic, simulating the role of the
invisible guard in the Panopticon. Also important are the logging of
information and the registration of users, enabling the visibility that is the
source of disciplinary power. Productivity of surveillance, such as the
regulation of pornography and providing a sense of security, justify the
potentially repressive side of it. Further tools at the government’s disposal
are intimidation, serving as a reminder of constantly being watched and,
subtler, disinformation, to sow uncertainty over the authenticity of the
services offered to circumvent censorship. These services often lack the
continuity to facilitate a large user base and are destined to stay
marginalized. Panopticism is a highly effective model for regulating behavior,
especially since the government is mostly concerned about normalizing the
behavior of the general public.”
2003 17: 65 China Information Lokman Tsui Regulation of the Internet in
China The Panopticon as the Antithesis of a Space of Freedom (page 72, and
76-77)

6.1.4 Representations of “Crime”

The meeting of rhetorics of regulation and the Internet will allow
negative teams to critique converging representations of safety and
control balanced against dissident desires for anonymity and freedom:

“While it is common to portray the Internet as a lawless place, some of our

actions are in fact much more traceable and easier to monitor online than
they are offline (Grabosky, 2001: 246). Coupled with the never-ending call for
tighter regulation and criminalization of behaviour which in its offline
incarnation may be simply treated as deviant or immoral, the distinction
between identity play and downright identity fraud is indeed set to become
increasingly vague simply because online behaviour may be more
extensively monitored and policed. Moreover, a greater demand for
 identification on the Internet, while partly the result of a desire to combat
deception, may have the opposite effect of encouraging identity fraud as
some users seek to escape an undesirable legal identity (such as an
unfavourable credit rating) which bars them from accessing services and
information online. Thus Finch (2007) notes: The increasing requirement of
identifibility that is an ineluctable aspect of modern society forces individuals
with ‘spoiled’ (…) identities to choose between perpetual disclosure of
information they would rather hide from the public gaze or the denial of
access that follows from the inability to provide this information. (p. 33)
Internet communication may offer enhanced opportunities for identity fraud,
but equally significant is that it also acts as a screen on which deep-seated
feelings of insecurity can be easily and convincingly projected.”
2008; 4; 311Crime Media Culture Lieve Gies How material are cyberbodies?
Broadband Internet and embodied subjectivity p. 315-317

Negative teams will also be able to claim that representations of social

‘net-threats’ avoid the ‘real’ issues that precipitate Internet danger:

“The effects of harmful web contents are chronically at issue in the Internet
regulation debate, leading to frequent calls for intervention and censorship.
When placed within the wider context of media effects, one is left wondering
whether there may indeed be ‘nothing new under the sun’ (Sutter, 2000) in
respect of ‘new’ technology (see also Grabosky, 2001). The virtual demon
evokes an image all too familiar to media scholars, namely that of audiences
being sucked into an impoverished and surrogate reality, causing all manner
of social ills. What such discourses tend to neglect is that if there is any harm
perpetrated, its causes and effects are often complex and multifarious.
The Internet is ‘only’ a medium: as the pro-ana community is keen to
emphasize, you do not catch anorexia from visiting a website. Anorexia is a
complex disorder and the pro-ana controversy is the latest instalment in the
long-running debate on the link between the consumption of media images
and eating disorders. It would not make for a sound public health policy if the
attempt to combat anorexia focused exclusively on the media side of the
disorder. In that sense, the virtual does not hold the key to solving anorexia
(and bulimia) as a ‘problem’ because it is neither sufficient nor necessary to
trigger an eating disorder. “
2008; 4; 311Crime Media Culture Lieve Gies How material are cyberbodies?
Broadband Internet and embodied subjectivity Pg. 323

In addition to basic solvency implications, such critiques of ‘net-threat’

representations will allow debaters to utilize the writings pertaining to
criminality produced by The Invisible Committee (2007) as well as Jean
Baudrillard’s writings dealings with symbolic violence/terrorism
(1990).

6.1.5 Cyberfeminism
Negative teams will be able to critique affirmative plans from the
standpoint of cyberfeminism:

“The Internet represents a potentially powerful platform for women's

subversion of gender stereotypes and for development of a virtual public
sphere that more strongly reflects the values, priorities, desires, and
 aspirations of women. This optimistic view of telecommunications
innovations is undercut by the interests of global capital, which seek to
regulate and control cyberspace.” (Page 1.)

Author continues P. 2

“Cyberfeminism is one of many strands of feminism, such as liberal, socialist,

environmental and so on. In common with other feminist ideologies,
cyberfeminism emphasises the central role of gender in social relations and
the consequent oppression of women. The best-known exponents of
cyberfeminism are the VNS (pronounced Venus) Matrix, authors of the
"Cyberfeminist Manifesto for the 21st Century" (1991), and Sadie Plant,
author of Zeros + Ones (1998). Cyberfeminism asserts an alliance between
woman and new telecommunications technologies. Cyberfeminists
emphasise the transformative power of cyberspace, or the notion that the
virtual world allows women to transcend gender, class, ethnicity, sexuality
and other identity categories to generate a more egalitarian reality within the
virtual public sphere. Cyberfeminism can be seen as a fresh understanding
of the relationship between gender, science and technology; since Victorian
and Edwardian 'first-wave' feminism, feminists have debated the nature of
this relationship. In the final analysis, this feminism is premised on an
optimistic understanding of technology, or the perception of technology as
societal saviour rather than destroyer.”
Women and the Internet: Reflections on Cyberfeminism and a Virtual Public
Sphere By Megan Smitley This essay was prepared as a discussion of 'the
social aspects of computers' as part of the assessment for my MSc in
Information Technology at Queen Mary, University of London, 29 November
2004. (Pages 1-2)

In addition to the notable works referenced by Smitley, debaters will

be able to research broader implications of technology and feminism,
such as Donna Haraway’s seminal work A Cyborg Manifesto (1991).

6.1.6 Psychoanalysis
Finally, negative and affirmative teams alike will be able to critique
notions of the Internet from the standpoint of psychoanalysis, via
multiple link stories from either a Zizekian or Lacanian perspective:

“Žižek’s early work on cyberspace emphasizes the loss of virtuality as the

gaps in the symbolic are filled. The circulation of contributions in the
networks of communicative capitalism suggests a different structure, one
characterized by drive. There is no ‘cyberspace’ that persists as its own
domain. Rather, the networks of global communications connect through a
variety of devices, technologies, and media—Internet, mobile phones,
television, global positioning systems, game platforms, etc. One of the more
interesting features of massive multiplayer online role-playing games is the
intersecting of game and non-game worlds: players can buy and trade
currencies and characters outside the gamespace. The expansions and
intensifications of networked interactions thus point not to a field closed to
meaning as all possibilities are explored and filled in but rather back to the
non-all Real of human interaction. In his later work, Žižek supplements the
‘Lacanian account of the Real as that which “always returns to its place”—as
 that which remains the same in all possible (symbolic) universes’ (2006: 26).
He adds the notion of a parallax Real, that is, a Real capable of accounting
for the multiplicity of appearances of the same underlying Real. Such a
parallax Real is a gap or shift between perspectives. It does not embody a
substantial point of information or sensory perception (you feel it in your gut;
I feel it in my bones). Rather, it is the shift from one perspective to another.
The Real, then, does not refer to what is the same but to the ‘hard bone of
contention which pulverizes the sameness into the multitude of appearances’
(2006: 26). It is retroactively posited as the necessary yet impossible cause
of this very multiplicity. Thus, there are two aspects to the parallax Real:
multiplicity and its impossible core, a ‘purely virtual, actually nonexistent X’
(2006: 26). Such a notion of a parallax Real is well-suited to communicative
capitalism. What appears is multiplicity, pulverization, the constant and
repeated assertion of something else, something different. Yet, to the extent
that the shifts of perspective appear immediately (without interpretation,
meaning, elevation to the status of a universal) they obscure the fact of
contention, as if the shifts were among a multitude of singularities each with
its own perspective, none of which is more powerful, more structural, or more
true than another (an example from the U.S. is the way that conservatives
accuse liberals of racism when liberals argue for racial diversity in political
appointments). What is obscured is the underlying gap or disavowal, the
virtual X of fundamental antagonism. The multiplicity of shifts effaces their
embeddedness in capitalism, more specifically, the communicative
capitalism that makes their expression possible. If the Real is ultimately
impossible, then it names the obstacle we come up against in our supposition
and experience of reality. In communicative capitalism, that obstacle is the
(missing) efficiency of the symbolic. The Real of the Internet is the circulatory
movement of drive—the repeated making, uploading, sampling, the constant
pulverization that occurs as movement on the Internet doubles itself,
becoming itself and its record or trace—effected by symbolic efficiency as
loss. The movement from link to link, the forwarding and storing and
commenting, the contributing without expectation of response but in hope of
further movement (why else count page views?) is circulation for its own
sake. Drive’s circulation forms a loop. The empty space within it, then, is not
the result of the loss of something that was there before and now is missing.
The drive of the Internet is not around the missing Master signifier (which is
foreclosed rather than missing). Instead, it is the inside of the loop, the space
of nothing that the loop makes appear. This endless loop that persists for its
own sake is the difference that makes a difference between so-called old and
new media.”
International Journal of Zizek Studies, Volume Four, Number One The Real
Internet Jodi Dean – Hobart and William SUSA p. 15-16

6.2 Topic Specific Critique Alternatives and Selected

Responses
While teams will be able to argue the generalized critique alternatives
of mere ‘rejection’, ‘re-thinking’, and ‘revolt via the ballot’ the unique
qualities of the Internet pre-suppose several interesting and unique
critique alternatives.

6.2.1 Self-Regulation
Alternative options for negative teams will include un-ordered ‘self-
regulation’:
 “Donath and Boyd (2004) attribute the growing success of social networking
websites (such as ‘Friendster’, ‘Facebook’ and ‘Myspace’) to users’ desire to
authenticate themselves by explicitly stating their connections with others
who know them (preferable from offline encounters) and who are therefore
able to confirm that they are indeed who they claim to be. In contrast with
the anarchical and criminogenic reputation of the Internet, Wall (2001: 167)
finds cyberspace ‘remarkably ordered’, a quality he believes is in no small
part attributable to different layers of governance, including a measure of
self-regulation imposed by users themselves. Self-authentication as a
means of establishing credibility undoubtedly testifies to users’ wish to
contribute to order online. Featherstone (2000) says of virtual reality: As in
all types of communication it is to be expected that forms and conventions
will emerge which provide the equivalents of everyday face-to-face cueing
devices, turn-taking in conversations, body language etc. which are driven by
the economizing imperative of being understood. (p. 615)”
2008; 4; 311Crime Media Culture Lieve Gies How material are cyberbodies?
Broadband Internet and embodied subjectivity p. 319-320

A similar more policy oriented alternative might be the creation of

forms of pseudo-institutionalized self-regulation:

“Within the present context, the question concerns more precisely how the
different solutions to the self-regulation of the Internet can encounter
their own conditions of increase in reflexivity. These conditions have to be
met if one wants to mobilise effectively the new reflexive resources which are
needed to face unprecedented ethical situations. However, literature on the
subject of self-regulation of the Internet already attempts to go beyond
the insufficiencies of actual solutions ; hereby holding that self-regulated
networks can go beyond individual market behaviour by developing a certain
level of collective constraint which is different from the one emanating
directly from the government (Black [9]). One can think of forms of self-
regulation by delegation as in the case of the privatisation of the root by the
creation of the ICANN (Internet Corporation for Assigned Names and
Numbers) (Ogus [43], p. 596 ; Mueller [39], pp. 518-519) or of forms of
spontaneous emergence of voluntary constraints within user communities
(Poullet [46] ; Ogus [43]). Nevertheless, these solutions are most of the time
limited to proposing a purely formal reflexivity of ethical codification or
juridical self-rule. To take into account the reflexivity of the actors and the
institutional frameworks in addition to the formal rules, two types of solutions
are proposed in literature on the subject. The first solution, which can be
described as ‘decentralized regulation’ (Lemley [29]) or ‘multi-regulation’
(Vivant [55])7, tries to take innovation (Kling [25], p. 116) or on the question
of the real beneficiaries of the increase in productivity in organisations
through computerisation (Kling [25], p. 123). These are the terms used in
the field of Internet governance. One could prefer the term of “polycentric”
governance, used in the field of community management of common goods
studies, which has the advantage of showing that decentralisation does not
imply the absence of any coherence between the subsystems. The use of this
term, introduced by V. Ostrom, Ch. Thibout and R. Warren, connotes a
coherent manner of functioning of the system as a whole through “various
contractual and cooperative undertakings” between the independent into
account the reflexivity of the new actors emerging in the field of the Internet.
This solution focuses on the increase in reflexivity of the emerging actors
 through the recurrent interaction between subsystems of normativity, such
as the interaction one can observe within the Internet Society between the
Internet Societal Task Force (ISTF) on the one hand and the Internet
Architecture Board (IAB) and the Internet Engineering Taks Force (IETF) on
the other8. The second solution, which we describe as ‘co-regulation’ in the
strong sense, focuses on an institutional framing facilitating the responsibility
of the actors in favour of the research of common solutions, such as in the
proposition of the French and Australian coregulatory agencies.”
Ethics and Learning From State Regulation towards Reflexive Self-
Regulation of the Information Society © Tom Dedeurwaerdere (UCL-FNRS)
Paper to be presented at the World Computer Congress, Montreal 2002*. p.
10-11

Conversely, affirmative teams will be able to claim alternative

solvency deficits and impact turns by claiming that such ‘self-
regulation’ reifies problematic social structures:

“What is important about such practices is that, through them, social

hierarchies, inequalities and power relations easily find a way into
cyberspace. (p. 320)”

(Author continues p. 327)

“It is important to stress, however, that rather than taking us into entirely
new directions, our ‘cyber selves’ (Aas, 2007) constitute merely an additional
layer to already densely structured social identities. This is becoming ever
more pronounced as offline social rules are routinely relied on to order
cyberspace where they mimic familiar hierarchies and cannot be decoupled
from existing material inequalities. When considering the case for increased
regulation of the Internet, we would do well to bear in mind that social
control, often but not exclusively driven by commercial and political
governance imperatives, is already deeply enmeshed with cyberculture.”
2008; 4; 311Crime Media Culture Lieve Gies How material are cyberbodies?
Broadband Internet and embodied subjectivity p. 320, 327

Affirmative teams will also be able to cite good solvency advocates for
permutations concerning such critique alternatives:

“Let me summarise the issues conveyed so far. Pure forms of self-

regulation, as in the case of having to abide by codes of conduct are not the
norm. Most of the time some form of hierarchical assistance is required in the
monitoring and enforcement stage. The value of this point is proved by
examples such as the dispute-resolution mechanism introduced by ICANN
and the architectural solutions developed for DVDs.”
Questioning the Neutrality of Procedural Law: Internet Regulation in Europe
through the Lenses of Bourdieu’s Notion of Symbolic Capital Katerina Sideri*
European Law Journal, Vol. 10, No. 1, January 2004, pp. 61–86. © Blackwell
Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350
Main Street, Malden, MA 02148, USA P. 77
6.2.2 Anonymity
A second unique critique alternative at the disposal of negative teams
will be the acceptance of anonymity as an identity:

“Accepting, however, that a strong case can be made for this ‘control’ vision
of the Internet, some have argued for the creation of new rights. It has
variously been suggested that the Internet requires the development of new
constitutional rights, or the creation of ‘digital rights’. Part of the debate
about rights relates back to the question of whether these are required
because the Internet presents a new ‘space’. The position of this paper is
that early hacker culture was not altogether naïve in thinking that the
Internet posed an opportunity for interacting differently to the ‘real’ world (or
creating a new ‘space’). This mode of real-time, decentralised and remote
communication arguably did present new opportunities to develop alternate
personas and non-geographically bounded relationships. The furor which
developed about this capacity, specifically the capacity to act deceptively
through adopting anonymity as a result of these technical characteristics, led
to debates about how to build, ‘responsibility’, and ‘accountability’ between
Internet users online. Arguably, this debate has now been largely decided by
the process of commercialisation. As Lessig noted, the simplest route to
imposing ‘responsibility’ on individuals in cyberspace is by the way it is done
in the ‘real’ world- through identification. Anonymity and pseudonymity can
offer a form of strategic resistance for Internet users against ways that the
Internet could be used as a method of social control.”
The ‘Strategic Value’ of Online Anonymity By Madeleine Mispel Market
mindset? (Page 16)

However, affirmative teams will also be able to cite good solvency

advocates for their permutations to strict anonymity:

“However ‘individual stewardship’ of anonymity is an inadequate method of

achieving this goal. For effective utilisation of anonymity, it must be
structured into the architecture of the Internet, where the capacity for control
and surveillance is decided. Ideas such as those of Goldberg and Clarke who
propose implementing centrally held traceable or non-traceable
pseudonyms, present two examples of such alternative Internet architecture.
Apart from an anonymous architecture being the only way of effectively
protecting individual privacy, it might also be the only way a more nuanced
approach to privacy might be developed which takes account not only of
individual’s interests as consumers, but also reflective of privacy as a
collective and community concern, and related to the human rights of
privacy and freedom of expression. Thinking of anonymity as an
architectural concern may also provide a solution to the problem of economic
and political vilification not only of individuals who use anonymity software,
but of those who operate anonymity structures. As Froomkin notes, “In the
absence of a compensation mechanism or a jurisdiction capable of offering a
safe haven for re-mailers, the cornerstone of Internet anonymity currently
relies on the charity of strangers.” However, debates about reforming
Internet architecture would not only be difficult to be had because of its lack
of an overarching authority.”

The ‘Strategic Value’ of Online Anonymity By Madeleine Mispel Market

mindset? (Page 17)
6.3 Critical Advantages and Selected Responses
The proposed topic opens up several important/interesting critical
options for affirmative teams both with regards to advantage
scenarios and impact framing.

6.3.1 Civil Rights

Affirmative teams will be able to argue for the need for Internet
regulation in order to protect dissenting and/or minority group voices
from organized violence:

“The Internet’s lack of mediation also facilitates rapid revision of web-site

content in a fashion that can assist terrorist organizations. A site that
contains specific or personal information about potential targets of terrorist
attacks, including buildings, installations, or people, can readily update that
site as new information becomes available. While people or groups can alter
patterns of behavior to deal with other kinds of public threats, the flexibility
and modifiability of Internet communications mean that those behavior
alterations can be quickly passed on to persons who might be committed to
executing attacks. In addition, the flexibility of the Internet makes it easy to
shut down web-sites and set up new ones to avoid detection. (p. 36)”

Author continues p. 42

“To reinvigorate civic engagement, both Brandeis and Arendt looked to

outsiders. Both thinkers believed that immigrants strengthened democracy
by bringing new ideas and renewed commitments. Each identified the labor
movement as a central engine of participation for the hitherto excluded and
viewed repression of the movement as a danger to participation-centered
ideals. Arendt also praised the role of the anti-war and civil rights
movements of the 1960's in making the government accountable. Although
civic republican theorists’ insist on the need for dissent, they tend to view
organized violence against others as undermining engagement. For Arendt,
violence reflects a homogenized viewpoint, certain of its conclusions, and
focused too often on the mechanics of death and pain”
THE CLEAR AND PRESENT INTERNET: TERRORISM, CYBERSPACE, AND THE
FIRST AMENDMENT Peter Margulies* (p. 36 and 42)

Conversely, negative teams will be able to argue for solvency turns

predicated upon the desire of government officials to utilize such
regulation regimes as a tool of suppressing dissent:

“Government, properly understood, needs participation to develop new ideas

and challenge old habits. However, government officials often seek ways to
domesticate or manage participation, robbing it of the alliance with the
unexpected that makes it a central expression of what it means to be human.
Seeking to manipulate public opinion, governments frequently alter facts and
massage the truth. Governments also seek to stigmatize dissenters, casting
them as outsiders of questionable loyalty.”
THE CLEAR AND PRESENT INTERNET: TERRORISM, CYBERSPACE, AND THE
FIRST AMENDMENT Peter Margulies* (p. 41)
6.3.2 Democracy
Perhaps most importantly, the proposed topic will allow the high
school debate community to move beyond a mere perfunctory
discussion of democracy (“this is Diamond, ‘95”) and engage the well
nuanced and developed literature base of various democratic theories.
Affirmative teams will be able to claim advantages and critical impact
turns related to the need of ‘some’ regulation in order to achieve the
ideal polis of deliberative democracy described be Habermasian
communication scholars:

“The Internet could be an efficient political instrument if it were seen as part

of a democracy where free and open discourse within a vital public sphere
plays a decisive role. The model of deliberative democracy, as developed by
Jürgen Habermas and Seyla Benhabib, serves this concept of democracy best
(p. 21)”

(Author Continues Pg. 34)

“In order to preserve the potential for deliberative democracy that the
Internet offers, it is necessary to have legal and administrative regulation.
This is one of the consequences which follows from the concept of a
normative public sphere. In the future, regulation of the Internet will
depend more and more upon the limitations imposed by commercial
interests, but it remains important that non-profit organizations should exist
in addition to commercial providers so that affordable access to the Internet
can be maintained. This is especially the case when one considers
developing countries and the so-called third world. For these countries and
for organizations such as Unesco, this access should be a life-line for the
political use of technology. At the same time politicians should keep clearly in
view the fact that access to information is part of the fundamental right of
citizens to unrestricted communication and interaction; and this is basic and
essential to a functioning democracy. The political and legal results of
maintaining a critical and deliberative public sphere would be seen in public
access to the Internet in places such as public buildings and libraries, as well
as free access to on-line archives, databases and commercial data-banks
such as Lexis-Nexis and Genios. The recommendation is simple, but in
combination with the relevance of a vital public sphere as it is pictured in the
model of deliberative democracy it is very important.”
2001 27: 21 Philosophy Social Criticism Antje Gimmler Deliberative
democracy, the public sphere and the Internet p. 21 and 34

Conversely, a spirited impact turn debate is to be predicated upon the

work of such radical democratic theorists as Chantal Mouffe (2000)
and Ernesto Laclau (1996, 2005) as well as various more moderate
social democrats influenced by the various Rawlsian theories of
democracy and communication.
6.3.3 Totalitarianism
Finally, affirmative teams will be able to claim that moderate Internet
regulation in the present safe guards against a full government take
over and co-option in the long term a la Putin’s Russia in the wake of
the more laissez faire 90’s:

“Traditionally, authoritarian governments have responded to the IT

revolution by censoring sources of free and unbiased information (China,
Singapore, Middle East), while democratic governments focused on public
concerns such as protection of minors and hate speech (United States,
European Union). The game theoretic model introduced to explain the
Russian case formally showed that governments have a third choice: to
promote Internet access and ICP proliferation, and then use the Internet for
direct and indirect propaganda. Realizing this danger – even if in the long run
the government’s ability to overpower independent ICPs The most important
part of reforming what Huskey (2001) called centralized state machinery was
Putin’s re-centralization of executive power through dividing the country into
seven administrative regions, run by Putin’s loyal representatives appointed
to reign in on the numerous regions’ governors and presidents. See President
Putin’ May 13, 2000 Presidential Decree establishing the seven regions. The
simplicity of the game theoretic model introduced also allowed us to see that
introduction of new technologies such as the Internet may open up
possibilities of control that were otherwise unavailable to a post-totalitarian
authoritarian regime (one that is forced to allow some freedoms in the public
and private space, while leaders maintain power and political control through
un-democratic means that exclude blunt propaganda, censorship, and
terror). In these cases, what may seem more freedom could mean less
freedom in the short run and a danger of yet-to-be- conceived opportunities
for control in the long run. Further, when non-democratic governments show
signs of learning which control mechanisms work and which ones do not, we
should be especially concerned.”
The Internet in Putin’s Russia: Reinventing a Technology of Authoritarianism
Marcus Alexander Department of Politics and International Relations
University of Oxford April 2003 Presented at the Annual Conference of the
Political Studies Association, University of Leicester, UK, April 15-17, 2003 (p.
23-24)

7. WORDING THE RESOLUTION

We believe there will be a spirited discussion about what ‘regulation’

means. Most sources define the word to mean control by the
government over a community’s actions.

Regulation is “sustained and focused control exercised by a public agency

over activities which are valued by a community.” The key features of
regulation are that it involves a third party—the regulator—in market
transactions and interorganisational relationships and that it places
responsibility for overseeing performance with a single entity—the regulator.
Economists see regulation largely as a remedy for market failure. However,
as the definition suggests, regulation is also often used to achieve wider
social goals—equity, diversity, or social solidarity—and to hold powerful
corporate, professional, or social interests to account.
 The Rise of Regulation in the NHS

However, there are interpretations of the word that exclude criminal

law.

It is probably useful to begin by defining regulation. According to

Dictionary.com, regulation is “a law, rule, or other order prescribed by
authority, especially to regulate conduct.” Obviously this definition is quite
broad. For example, it would seem to include the whole of criminal law, as
well as tort law. From this perspective, making the case for regulation is easy.
Economists agree that laissez-faire does not generally achieve an efficient
outcome in the presence of externalities. A criminal who robs or murders
someone is obviously creating a negative externality, as is a driver who runs
down a pedestrian, or a firm that creates pollution. It makes sense for the
government or the courts to discourage such behavior by imposing prison
sentences or fines on the perpetrators or making them liable for the damage
they cause. In most discussions, however, regulation is used in a narrower
sense. First, it often seems to refer to a situation where “quantities” rather
than “prices” are used to control behavior. For example, a regulation might
specify that a business must have a fire extinguisher on its premises, rather
than that it will be liable for the damage caused by the absence of a fire
extinguisher.
Second, regulations are often proposed in situations where the
relevant parties have a contractual relationship with each other. This is
obviously not true of the criminal and his victim, or the driver and the
pedestrian. Making the case for regulation when the key parties can contract
with each other is much harder. The difficulty is that it is not clear why the
parties cannot design their own penalties to control bad behavior. To put it
another way, the argument for regulation comes up against the argument for
freedom of contract. Regulation restricts the feasible set of contracts
available to the parties, and under standard assumptions this cannot make
them better off. In order to justify regulation, therefore, one has to appeal to
some imperfection in the contracting process. I discuss the main
imperfections on which the literature has focused, illustrating each with
examples.
Regulation and Sarbanes Oxley

Additionally, students will be able to discuss what ‘the Internet’

actually is.

As an umbrella term that includes the associated terms cyberspace and the
Web (World Wide Web), the Internet can refer to the actual network and the
exchange of data between computers. Many people use the Internet in a
seemingly straightforward way: sending and receiving personal email,
accessing public information, downloading maps, viewing merchandise and
making purchases online, and generally using the technologies for
information gathering and transmission. Internet can also refer to social
spaces where relationships, communities, and cultures emerge through the
exchange of text and images, either in real time or in delayed time
sequences. There is a long tradition of social interaction and community
development based on the capabilities of the Internet. In short, the Internet
can be perceived as a set of technological tools, a complex network of social
 relations, a language system, a cultural milieu, and so forth. The way one
defines and frames the Internet influences how one interacts with Internet-
based technologies, as well as how one studies the Internet.
Internet communication as a tool for qualitative research Annette N.
Markham

(The authors would like to briefly clarify here the distinction between
the Internet and the World Wide Web. The Internet is a series of
interconnected computers that communicate using the Internet
Protocol Suite. The World Wide Web is a system of hyperlinked
documents accessed via the Internet. In other words, the Internet is
the framework and the Web is the app.)

Regardless of each of these concerns, we are confident that

‘regulation of the Internet’ is the proper term of art and that adequate
evidence could be reached by students searching on those keywords.

We are now open for cross-examination.

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