Proceduralization, Agencification, and Privatization: Internet Governance’s Three Pillars and their Normative Consequences
Résumé
Governance arrangements encompass various and complex forms, especially when they are based on technical and private means of regulation. They define different spaces, where specific orders may apply, and populated by actors which may interplay following different scenarios: antagonistic mechanisms of rule compliance or avoidance, co-elaboration through mutual recognition, consensus building through rational dialogic processes, or power relations confronting in agonistic arenas. The resulting heterarchic system itself needs to be organized or governed, requiring a meta-heterarchic level to manage and organize this complex system and the interactions of its components. Such a meta-heterarchy is mainly – but not only - organized on the Internet by governments acting on the main control levers, which are the gatekeepers of the different spaces. Whether these gatekeepers take the form of technical mechanisms, contractual means, or are represented by organizations or agencies, procedural arrangements to manage the networks and spaces implies important normative consequences.
However, while Internet governance is a concept that has rather recently emerged in the public sphere, many of its involved issues, policies and arrangements have been discussed in various national, regional and international fora since the mid-90s, when the Internet became accessible to a larger and more heterogeneous public. The huge literature on Internet regulation regimes – including the grey literature – finally coined the concept of “co-regulation”. That is, a regime where regulation is co-elaborated and co-operated by of public and private actors and/or where the State voluntarily delegates all or part of these activities - sometimes including some of its regalian prerogatives - to private or semi-private parties. This extension of the concept of Internet co-regulation in its first understanding has been summarized in the WSIS Tunis Agenda’s definition of Internet governance. As so defined, the concept leads to three forms of meta-hererarchical arrangements proceduralization, agencification, and privatization.
Driving conclusions from previous work by the author, the proposed contribution will elaborate on these (Internet) Governance three pillars and their normative consequences, in reference to the literature on other governance fields than the Internet. It will show in particular how the processes of proceduralization, agencification and privatization lead to serious impacts on the substance of fundamental rights and freedoms, on democracy and on the principle of the rule of law. Instrumental to these processes in the Internet field, the massive use of technical mechanisms is more and more making code becoming law. In particular, the ex ante recourse to technical means in order to ensure massive surveillance and social control and to avoid that an offence can even be committed or, more generally speaking, that any “deviating” behavior can be adopted, instead of ex post law enforcement and punishment processes, lead to an entire reversal of perspective and values. There is a noticeable novelty here with respect to the early analyses: on the one hand, gatekeeping mechanisms have reached major technical progress; on the other hand, this progress is concomitant to and encountering with the changing nature of the State and the raising importance of private orderings.