The normative order of the internet : a theory of rule and regulation online

## Abstract Online anarchy? Far from it: as this study convincingly shows, norms matter online. In a tour de force, internet law expert Matthias C. Kettemann analyses the genesis, ontology, and legitimation of rule and rules on the internet. Innovatively, the study establishes the emergence of a normative order of the internet, an order that integrates norms materially and normatively connected to the use and development of the internet at three different levels (regional, national, international), of two types (privately and publicly authored), and of different character (from ius cogens to technical standards). Centrifugal forces contribute to normative redundancies (“normative froth”), real conflicts of norms between regulatory layers and geographically bounded normative spheres (“normative friction”), substantial structural problems (“normative fractures”), and political, commercial, and technological fragmentation of the internet. But these forces of normative disorder can be countered. As the study impressively shows, a normative turn has taken place on the internet. The rules on rule-making that have developed within the normative order of the internet explain, predict, and legitimize the creation of new norms through processes of self-learning normativity. These norms are then assessed for their internal coherence, consonance with other order norms, and consistency with the order’s finality. The normative order of the internet is based on and produces a liquefied system characterized by self-learning normativity. Thus a theory of normativity (“of the law”) that goes back to Kant needs to be fundamentally rethought: with norm-based self-organization as the principle of life that enables the transcendental constitution of normativityon the internet. Cover The Normative Order of the Internet Copyright Dedication Preface Table of Contents Leading Theses Judgments Laws Documents List of Tables Abbreviations 1. Introduction 1.1 Ubi Societas, Ibi Ius 1.1.1 Approaching Online Order 1.1.2 Regulating Communicative Spaces as a Historical Constant 1.1.3 Distinguishing Cyberspace 1.1.4 Norms Without Order? 1.2 Situating the Research 1.2.1 Within Interdisciplinary Approaches 1.2.2 Within (International) Legal Approaches 1.2.3 With Regard to the Concept of “Normative Orders” 1.3 Hypotheses 1.4 Structure 2. Foundations of Online Order 2.1 A Network of Networks 2.1.1 Foundations 2.1.2 Beginnings of the Information Society 2.1.3 Internet and “Internet(s)” 2.2 Criticality of the Internet 2.2.1 Conditions of its Functionality 2.2.2 Internet Integrity 2.2.3 The Internet as/​and Critical Infrastructure 2.2.4 Critical Internet Resources 2.2.4.1 Concept and Vulnerabilities 2.2.4.2 Addressing System 2.2.4.3 Technical Standards 2.2.4.4 Routing and Interconnections 2.3 Common Interest and the Internet 2.3.1 Protection of and from the Internet as a Common Interest? 2.3.2 Relating Internet Integrity to Human Rights 2.3.3 Relating Internet Integrity to Human Development 2.3.4 Relating Internet Integrity to International Security 2.3.5 Custodial Sovereignty 2.4 Challenges of Regulating the Internet 2.4.1 Foundational Myths 2.4.2 Evolving Composition of the Normative Medium 2.4.3 Code and Protocols as Law? 2.4.4 Algorithmic Decision-​Making 2.5 Conclusions 3. Law and Governance of the Internet 3.1 Foundational Rules 3.2 Applicability of International Law 3.2.1 From Disorganized Normativity to the “Ius Necessarium” 3.2.2 Toward a Consensus 3.2.3 Old Rules or New Rules? 3.3 International Law of the Internet 3.3.1 Definition 3.3.2 International Conventions 3.3.2.1 Direct Protection 3.3.2.2 Indirect Protection 3.3.3 Custom 3.3.3.1 Direct Protection 3.3.3.2 Indirect Protection 3.3.4 General Principles of International Law 3.3.4.1 Origin 3.3.4.2 Principle of Sovereign Equality 3.3.4.3 Non-​Use of (the Threat of) Force 3.3.4.4 Non-​Intervention in Domestic Affairs 3.3.4.5 Duty of Cooperation 3.3.4.6 Peaceful Settlement of International Disputes 3.3.4.7 Principle of Equal Rights and Self-​Determination of Peoples 3.3.4.8 Principle of Good Faith 3.3.4.9 No Harm Principle (Principle of Good Neighborliness) 3.3.4.10 Principle of Prevention and Due Diligence 3.3.4.11 Principle of Sustainable Development 3.3.5 Normative Acculturation 3.4 Internet Governance 3.4.1 Introduction 3.4.2 Concept 3.4.3 Actors 3.4.4 Evolution 3.4.4.1 Early Internet Governance Approaches 3.4.4.2 First Normative Commitments 3.4.5 Internet Governance Forum Process 3.4.6 Politicization 3.4.7 Taxonomy of Internet Governance 3.4.8 Principle Hype 3.4.9 Critique 3.4.10 Reform 3.5 Order on the Internet? 4. Normative Disorder on the Internet 4.1 Dynamics of Disorder 4.2 Dimensions of Disorder 4.2.1 Normative Froth 4.2.1.1 WSIS Principles 4.2.1.2 New Principles 4.2.1.3 Degrees of Normativity 4.2.1.4 Consequences 4.2.2 Normative Friction 4.2.2.1 Problem 4.2.2.2 Intermediaries 4.2.2.3 Public and Private Spaces 4.2.2.4 Technical Norm-​Setting Cyberwar 4.2.2.5 Consequences 4.2.3 Normative Fractures 4.2.3.1 Problem 4.2.3.2 International Law and Other Norms 4.2.3.3 Universality and Subsidiarity 4.2.3.4 Territoriality and Reterritorialization 4.2.3.5 Cyberwar 4.2.3.6 Trust 4.2.3.7 Regime Deficiencies 4.3 Fragmentation 4.3.1 Forces of Fragmentation 4.3.2 Technical Fragmentation 4.3.3 Commercial Fragmentation 4.3.4 Governmental Fragmentation 4.4 Defragmentation 4.4.1 Technical Predisposition 4.4.2 Internet Invariants 4.5 Conclusions 5. Theorizing Order(s) on the Internet 5.1 Introduction 5.2 Legal Theory and the Digital Condition 5.2.1 Epistemology of Computer Culture 5.2.2 Binary Operations Under Uncertainty 5.2.3 Liquid Law and Networked Regimes 5.2.4 Dehierarchization and Heterarchy 5.2.5 Self-​Constitutionalizing Regimes 5.2.6 Internal Politicization of the Lex Digitalis 5.2.7 Transnational Constellations 5.2.8 Permeability and Regime Dialog 5.2.9 Hybrid Legal Spaces 5.2.10 Exercising Authority Beyond the State 5.2.11 Normative Ordering and Undernormativity 5.3 Online Order Theories 5.3.1 Internet Constitutionalization 5.3.2 Interoperability 5.3.3 Jurisdictional Approaches 5.3.4 Governance by Microdecisions 5.3.5 Governance by Infrastructure 5.3.6 Reconceptualizing Governance 5.4 A Theory of the Normative Order of the Internet 5.4.1 Making Normative Change Visible 5.4.2 Theoretical Imports 5.5 Envisaging the Normative Turn 6. The Normative Order of the Internet 6.1 The Normative Turn 6.1.1 A New Regulatory Order for the Internet 6.1.2 Stopping the Singularity 6.1.3 Regulatory Remit 6.2 The Nomos of the Internet 6.3 Normativity of the Order 6.3.1 Explicit and Implicit Normativity 6.3.2 Constitutionalization 6.3.3 Localization 6.4 Legality of the Order 6.4.1 The Normative Order of the Internet as a Legal Order 6.4.2 Norms of the Order 6.4.3 Normative Processes 6.5 Principles of the Order 6.5.1 Notions of Principles 6.5.2 Substantial Principles 6.5.3 Procedural Principles 6.5.4 Normative Descriptors of the Order 6.6 Legitimacy of the Order 6.6.1 Conditions of Legitimacy 6.6.2 Proceduralizing Legitimacy 6.6.3 Legitimation of the Order 6.7 Narratives of Justification 6.8 Facticity of the Order 6.8.1 Facticity and Ordering 6.8.2 Facticity and Imperfectness 6.9 Conclusions 7. The Normative Order of the Internet in National Legal Orders 7.1 The Protective Dimension of National Legal Orders 7.2 Normative Integration as Legitimation 7.3 Constitutional Integration of the Normative Order of the Internet 7.3.1 Multinormativity as Reality 7.3.2 Permeability 7.3.3 Openness 7.4 Judicial Integration of the Normative Order of the Internet 7.4.1 Threats to Rights as the Normative Background 7.4.2 Internet Access as a Precondition for Exercising Fundamental Rights 7.4.3 Access and Subsistence Minimum 7.4.4 Fundamental Right to Access as a Human Right to Access 7.5 Systematic Integration of Tertium Norms 7.5.1 Automatic Application 7.5.2 Post-​Consent Application 7.5.3 Deformalized Application 7.5.4 Transposition 7.5.5 Referencing 7.6 Reterritorialization as a Challenge to the Normative Order of the Internet 7.7 Conclusions 8. Conclusions Bibliography Index There is order on the internet, but how has this order emerged and what challenges will threaten and shape its future? This study shows how a legitimate order of norms has emerged online, through both national and international legal systems. It establishes the emergence of a normative order of the internet, an order which explains and justifies processes of online rule and regulation. This order integrates norms at three different levels (regional, national, international), of two types (privately and publicly authored), and of different character (from ius cogens to technical standards). Matthias C. Kettemann assesses their internal coherence, their consonance with other order norms and their consistency with the order's finality. The normative order of the internet is based on and produces a liquefied system characterized by self-learning normativity. In light of the importance of the socio-communicative online space, this is a book for anyone interested in understanding the contemporary development of the internet. This is an open access title available under the terms of a CC BY-NC-ND 4.0 International licence. It is offered as a free PDF download from OUP and selected open access locations. Abstract: There is order on the internet, but how has this order emerged and what challenges will threaten and shape its future? This study shows how a legitimate order of norms has emerged online, through both national and international legal systems. It establishes the emergence of a normative order of the internet, an order which explains and justifies processes of online rule and regulation. This order integrates norms at three different levels (regional, national, international), of two types (privately and publicly authored), and of different character (from ius cogens to technical standards). The author assesses their internal coherence, their consonance with other order norms and their consistency with the order's finality. The normative order of the internet is based on and produces a liquefied system characterized by self-learning normativity. In light of the importance of the socio-communicative online space, this is a book for anyone interested in understanding the contemporary d