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Published online by Cambridge University Press: 17 October 2024
I thank Jack Goldsmith, Duncan Hollis, Michael Karanicolas, David Kaye, and Viva Jeronimo for helpful discussion and comments.
1 “Login” was the intended message, but the balky system crashed at “Lo.” The Internet's First Message Sent from UCLA, UCLA 100, at https://100.ucla.edu/timeline/the-internets-first-message-sent-from-ucla.
2 The centrality of access to telecommunications has been frequently highlighted in the current conflict in Gaza. See, e.g., Human Rights Watch, Gaza: Communications Blackout Imminent Due to Fuel Shortage (Nov. 15, 2023), at https://www.hrw.org/news/2023/11/15/gaza-communications-blackout-imminent-due-fuel-shortage.
3 While digital technology, including cell phones and other platforms, encompasses much more than the Internet, the Internet is arguably the core of the digital world and crucial to the functioning of most other digital technology.
4 Amnesty International, Myanmar: Facebook's Systems Promoted Violence Against Rohingya; Meta Owes Reparations – New Report (Sept. 29, 2022), at https://www.amnesty.org/en/latest/news/2022/09/myanmar-facebooks-systems-promoted-violence-against-rohingya-meta-owes-reparations-new-report.
5 Chris Miller, Chip War: The Fight for the World's Most Critical Technology (2022).
6 Bulelani Jili, China's Surveillance Ecosystem and the Global Spread of its Tools, Atl. Council (Oct. 17, 2022), at https://www.atlanticcouncil.org/in-depth-research-reports/issue-brief/chinese-surveillance-ecosystem-and-the-global-spread-of-its-tools.
7 As UN Special Rapporteur for Freedom of Expression, David Kaye (a UC colleague of mine) made digital affairs a centerpiece of his work. See, e.g., Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc. A/HRC/38/35 (Apr. 6, 2018). See also Michael Karanicolas, Understanding the Internet as a Human Right, 10 Can. J. L. Tech. 264 (2012), available at https://digitalcommons.schulichlaw.dal.ca/cjlt/vol10/iss2/4/.
8 Duncan Hollis & Kal Raustiala, The Global Governance of the Internet, in Oxford Handbook of International Institutions (Michael Barnett & Duncan Snidal eds., forthcoming 2024). This origin led to a famed (and now often ridiculed) early paean to techno-libertarianism, John Perry Barlow's Declaration of the Independence of Cyberspace: “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace . . . . On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. . . . Cyberspace does not lie within your borders.” John Perry Barlow, A Declaration of the Independence of Cyberspace, Elec. Frontier Found. (Feb. 8, 1996), at https://www.eff.org/cyberspace-independence. The Barlowesque vision was successfully dismantled nearly two decades ago in: Jack Goldsmith & Tim Wu, Who Controls the Internet? Illusions of a Borderless World (2006).
9 These concepts were the subject of an important and influential debate on geography and war in the early twentieth century between Halford Mackinder and Nicolas Spykman. See H.J. Mackinder, The Geographical Pivot of History (1904); Nicholas John Spykman, The Geography of the Peace (1944).
10 Fred Dews, The Internet is America's Gift to the World, Brookings Inst. (June 4, 2014), at https://www.brookings.edu/articles/the-internet-is-americas-gift-to-the-world. See also Raustiala, Kal, Governing the Internet, 110 AJIL 491 (2016)Google Scholar.
11 E.g., Vint Cerf, A Brief History of the Internet & Related Networks, Internet Soc'y, at https://www.internetsociety.org/internet/history-internet/brief-history-internet-related-networks. The World Wide Web, however, was born at CERN in Switzerland, and often associated with Tim Berners-Lee. The Birth of the Web, CERN, at https://home.cern/science/computing/birth-web.
12 See transcript of remarks, Clinton's Words on China: Trade Is the Smart Thing, N.Y. Times (Mar. 9, 2000), at https://www.nytimes.com/2000/03/09/world/clinton-s-words-on-china-trade-is-the-smart-thing.html.
13 Oriol Caudevilla, China Is on Track to Be World AI Leader by 2030, With Hong Kong's Help, S. China Morning Post (Jan. 5, 2024), at https://www.scmp.com/comment/opinion/article/3247052/china-track-be-world-ai-leader-2030-hong-kongs-help.
14 And though much less well known to the average consumer, ASML in the Netherlands is today a major player in semiconductor production. Deutsche Telecom is the only EU-based firm to appear on Forbes’ list of the top twenty digital firms globally (at number 19). Top 100 Digital Companies, Forbes, at https://www.forbes.com/top-digital-companies/list (last visited Jan. 23, 2023).
15 Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation), 2016 OJ (L 119).
16 Korea, Japan, and Taiwan also play significant roles in digital technology markets and innovation, especially for the all-important process of chip-making, but for the purposes of this review, and following Bradford's schema, I focus on the Big Three of the United States, China, and Europe.
17 A concern prominently raised fifteen years ago by Jonathan Zittrain, The Future of the Internet—And How to Stop It (2009).
18 Neil Postman, Amusing Ourselves to Death: Public Discourse in the Age of Show Business (1985). Postman was writing in an effectively pre-Internet age, but his core view—that Aldous Huxley's Brave New World was in many ways the more prophetic dystopian vision than George Orwell's 1984 —seems increasingly correct.
19 Scott Malcolmson, Splinternet: How Geopolitics and Commerce Are Fragmenting the World Wide Web (2016).
20 As Malcolm Harris aptly put it, “remnants of a hippie counterculture synthesized with high technology and big finance to produce the spiritually and materially ambitious heart of Silicon Valley.” Malcolm Harris, Palo Alto: A History of California, Capitalism, and the World 1 (2023).
21 A famous motto of Mark Zuckerberg, founder of Facebook. See, e.g., Hemant Teneja, The Era of “Move Fast and Break Things” Is Over, Harv. Bus. Rev. (Jan. 22, 2019), at https://hbr.org/2019/01/the-era-of-move-fast-and-break-things-is-over.
22 Anu Bradford, The Brussels Effect: How the European Union Rules the World (2020).
23 David Vogel, Trading Up: Consumer and Environmental Regulation in a Global Economy (1995); Conor Dougherty, Can the “California Effect” Survive in a Hyperpartisan America?, N.Y. Times Mag. (May 30, 2023), at https://www.nytimes.com/2023/05/30/magazine/california-effect.html.
24 Jack Goldsmith goes further, arguing that the “U.S. internet freedom project deserves significant credit for the remarkable growth of the global internet, and especially global commerce, in the last two decades. But on every other dimension, the project is failing, and many of its elements lie in tatters.” Jack Goldsmith, The Failure of Internet Freedom, Knight First Amend. Inst. 4 (June 13, 2018), at https://knightcolumbia.org/content/failure-internet-freedom.
25 E.g., Meredith Broadbent, The Digital Services Act, the Digital Markets Act, and the New Competition Tool: European Initiatives to Hobble US Tech Companies, Ctr. Strategic & Int'l Stud. (Nov. 2020), at https://csis-website-prod.s3.amazonaws.com/s3fs-public/publication/201109_Broadbent_Digital_Services_Act_Digital_Markets_Acts.pdf.
26 Gideon Rachman, Europe Has Fallen Behind America and the Gap Is Growing, Fin. Times (June 19, 2023), at https://www.ft.com/content/80ace07f-3acb-40cb-9960-8bb4a44fd8d9.
27 And perhaps the adoption of a single language—as Bradford notes at various points, linguistic diversity has held Europe back in some areas and made some technologies difficult to scale.
28 Stuart Anderson, Most Billion-Dollar Startups in the U.S. Founded by Immigrants, Forbes (July 26, 2022), at https://www.forbes.com/sites/stuartanderson/2022/07/26/most-us-billion-dollar-startups-have-an-immigrant-founder/?sh=23c9d6f26f3a.
29 Anu Bradford, Digital Empires: The Global Battle to Regulate Technology 33–34, 374–75 (2023).
30 See, e.g., Allen Dulles’ Warning, N.Y. Times, 30 (Nov. 16, 1959).
31 Dan Tynan, The History of Yahoo, and How It Went from Phenom to Has-Been, Fast Comp., at https://www.fastcompany.com/40544277/the-glory-that-was-yahoo; Phil Rosen, Remember When NFTs Sold for Millions of Dollars? 95% of the Digital Collectibles May Now Be Worthless, Bus. Insider (Sept. 20, 2023), at https://markets.businessinsider.com/news/currencies/nft-market-crypto-digital-assets-investors-messari-mainnet-currency-tokens-2023-9; Paul Murray, Who Is Still Inside the Metaverse?, N.Y. Mag. (Mar. 15, 2023), at https://nymag.com/intelligencer/article/mark-zuckerberg-metaverse-meta-horizon-worlds.html.
32 It is noteworthy that China has begun to move closer to American-style bankruptcy, but only recently. See Zhou Wei & Serena Ng, China Embraces Bankruptcy, U.S.-Style, to Cushion a Slowing Economy, Wall St. J. (Nov. 6, 2019), at https://www.wsj.com/articles/china-embraces-bankruptcy-u-s-style-to-cushion-a-slowing-economy-11573058567.
33 Hollis & Raustiala, supra note 8.
34 Multistakeholderism has been defined as “two or more classes of actors engaged in a common governance enterprise concerning issues they regard as public in nature, and characterized by polyarchic authority relations constituted by procedural rules.” Mark Raymond & Laura DeNardis, Multistakeholderism: Anatomy of an Inchoate Global Institution, 7 Int'l Theory 572, 573 (2015). In practice, it generally refers to a mix of states and non-state actors collectively governing a given issue-area.
35 Kal Raustiala, Multistakeholder Regulation and the Future of the Internet, 75 Fed. Commc'ns L.J. 2 (2023).
36 Raustiala, supra note 10.
37 Debate over international regulation of AI has already begun. See, e.g., Lewis Ho et al., International Institutions for Advanced AI (July 11, 2023), at https://arxiv.org/abs/2307.04699.