'It's not that laws aren't relevant' said MIT Media Lab co-founder Nicholas Negroponte during the 1990s, 'it's that the nation-state is not relevant...The internet cannot be regulated.'
Negroponte's assessment has not aged well, but to be fair, he was not alone in his belief.
Digital activist and poet John Perry Barlow. (Flickr/Joi Ito.)
During the optimistic '90s, when the power of global communications technology was first being realised, many liberal intellectuals, anarchists, activists and technology pioneers predicted a future where the internet would transcend national borders (perhaps eliminating them altogether in some cases) and allow communities and individuals to organise themselves spontaneously without interference from the state. Indeed, digital activist John Perry Barlow proclaimed in 1996 in reference to states:
Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions.
This belief rested partly on the technological foundations the internet was built upon – a decentralised 'network of networks' that connected individuals along a shared protocol that provides the ability to transmit information 'simultaneously in all jurisdictions around the world.' Many simply believed that the internet would continually evolve, both technologically and politically, in ways that would ensure it would remain the domain of individuals and outside the purview of state power.
By now it is clear that this optimism was misplaced.
Over the last several years, research into the 'balkanisation' of the internet has become commonplace. Developments such as China's declaration of 'sovereignty' over the internet within its territory in 2010, plus the more recent revelations of former NSA employee Edward Snowden, have convinced many analysts that through regulation and political decree, some nations are attempting to localise and 'break away' from the worldwide web.
But this process is not new, and it is far more complex and multi-layered than many suspect.
An independent, free, and global internet like that which the liberal idealists of the 1990s imagined never really existed. More or less from the beginning, states have exerted a complex array of regulation, oversight and censorship over the internet, 'balkanising' it from its original inception as a modern scientific communication utility.
The best example is China.
Often, China's relationship with internet balkanisation is purely conceived through its censorship (The Great Firewall). But this is just one aspect of the way the Chinese state has controlled the way digital information (both political and commercial) has crossed its borders.
Since 1994, when China was first connected to the data network that would form the basis of the modern internet, the Government has ensured that all aspects of the network are within its control. This includes ownership and operation of hard lines, telecommunication infrastructure, regulators, service providers as well a dizzying array of licensing and regulation requirements which ensure that censorship is essentially self-imposed by both foreign and domestic content providers.
This protection 'behind' the Great Firewall has allowed the Chinese Government to gain the economic, scientific and commercial benefits that the internet brings while maintaining control over most aspects.
The state influenced the way the internet evolved within China's borders from the beginning. The basis for China's current regulation of the internet was actually established in 1949 when the Chinese Communist Party created the Ministry of Post and Telecommunications (MPT) with a mandate to be 'both the regulator of telecommunications services, as well as owner and operator.' This role is now filled by the Ministry of Industry and Information Technology (MIIT), but the essential arrangement never changed, in which government-owned or controlled bodies regulate, operate and own all the telecommunication services within the country. In fact, all data flow in and out of China is mandated to use the 'international incoming and outgoing channels' provided by the (MIIT) national network.'
While government control over the physical infrastructure is not unusual, it is the Chinese state's multiple layers of influence and control over all aspects of the internet within its borders which make it unique.
In terms of physical regulation, the MIIT requires any Chinese business or foreign corporation that wishes to possess a connection to the internet to pass 'certain safety, legal, technological and financial requirements' in order to gain access to one of China's data networks. Other directives from the state have also made it necessary to attain a 'network access permit' for any telecommunications equipment 'plugged into the public network', including terminals, wireless communication network equipment and 'network interconnections equipment.' The MIIT also attempted during the early 2000s to regulate a new Wi-Fi standard for use within China called WLAN Authentication and Privacy Infrastructure, or WAPI. This new standard, which the government eventually backed away from under pressure from industry, would have required users to 'register with a centralised authentication point', eliminating the mostly anonymous and decentralised nature of standard Wi-Fi networks.
Finally, the government since the 1990s has used a combination of investment regulation, licensing requirements, censorship and outright blocking of foreign content providers to control information flowing into the country. For example, any content providers (internet companies) that provide content in more than one Chinese province are required to attain a 'nationwide' operating license. Of course the nature of content provision is that it cannot be targeted at specific provinces, so this regulation essentially forces any foreign content provider to enter into a licensing agreement with the central government. This, in combination with The Great Firewall, which can slow down or block services that foreign content providers supply, forces these foreign companies to conform to China's regulations – including political self-censorship – in order to be competitive with domestic Chinese companies.
This is essentially what happened to Google in the years before it moved its server infrastructure to Hong Kong in 2010.
The case of China shows how complex and multilayered state influence on the internet can be. It involves manipulation of physical infrastructure, co-opting of global content providers, and direct censorship (the Great Firewall). The liberal idealism of the 1990s about a decentralised network of networks that 'could not be regulated' or censored never materialised in a global fashion. States have demonstrated that they possess the power to control the internet and the information that flows through it with multiple measures and processes. They just need the will and resources to do so.