Chapter 4:Democracy and Political Institutions

4

Democracy and Political Institutions

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4.1 DEMOCRACY, POLITICAL INSTITUTIONS, AND POWER

For those worried about the impact of global networks on local values, political institutions are a tool for coping with the problem. But the existing political institutions are themselves affected by the networks. Understanding how and why this is so is the aim of this chapter.

Some definitions are useful as a starting point. Power is the ability to impose a solution on others. It applies both within and outside existing political institutions, with or without a legitimate basis and balanced or not by the power of other actors or interests. By contrast, a political institution is an instrumental notion. The creation of political institutions presumes that there are problems to be solved by a consciously created government--a polity--rather than by social institutions or processes. And it further presumes that the institutions act as agents for a collective entity with defined geographical and subject-matter jurisdiction. In this context, democracy comprises a specific set of publicly determined political institutions, in contrast to technocratic government or despotism.

Democracy can also be understood as a normative indicator of the political legitimacy of a system or process. But legitimacy is a complex concept that requires a balance between effectiveness and openness of governance. This balance depends on the size and shape of the polity and on the character of the political problems to be solved.¹ Because any given arrangement of political institutions has implications for power and democracy, this chapter addresses the three notions jointly.

4.2 THE IMPACT OF THE INTERNET ON DEMOCRACY, POLITICAL INSTITUTIONS, AND POWER

The impact of the Internet on democracy, political institutions, and power is complex. Moreover, it is a work in progress. Clearly, global networks have the potential to change political arenas, the actors within them, the processes of politics, and the tools of governance. They may even change the character of political conflicts and the cognitive frameworks or normative beliefs that drive those conflicts. To be sure, not all institutions, actors, and processes are equally affected, but that fact in itself is a motivation for examining the nature of these impacts in some detail.

4.2.1 Complexity and Uncertainty

As discussed in Chapter 2, global networks are themselves still in a state of continual development. In addition, a variety of organizations are experimenting with different ways of interacting through networks and exploring a variety of (as yet unproven) business models. Many Internet services are still struggling to achieve profitable status, so their future is uncertain. The optimal technical and economic strategies for broadband transmissions at the local level--the so-called "last mile" problem--are also unsettled.² Such dynamism and uncertainty make large-scale outcomes difficult to predict. For example, how completely will the Internet penetrate each society? At what points will e-commerce activities saturate their U.S. markets? How quickly will Germany catch up to the United States? These factors, in turn, will affect how political institutions and power relationships evolve.

There are larger issues and conflicts as well, as evidenced by the continuing battle between those who believe the Internet should be privatized and those who believe it should be managed in an open and egalitarian manner. Furthermore, it is hard to predict whether the attempts to re-nationalize the Internet--that is, to reverse the globalizing trend using technical or legal tools in order to serve national cultural, social, and economic needs--will succeed in some or any countries. It is reasonable to expect, however, that political actors will try to influence Internet development--precisely because political institutions are affected by it.

These reciprocal influences are clearly very important, as pointed out in Chapter 1. Global networks create and constrain opportunities for policymakers, who respond by trying to shape the changes to their advantage. In the United States and Germany, the historical and technological starting points are very different, so global networks can easily trigger very different structural change in each of the two countries. An analysis is useful here not so much as a way of predicting the outcome in either country but as a way of describing the potential of global networks to change the political process in any polity (while acknowledging the unique characteristics of the United States and Germany).

4.2.2 Political Arenas

The term "political arena" refers to a set of formal and informal institutions that serves as a framework for policymaking and to which both public and private actors have access. The traditional political arena is the nation state, which can be affected by many characteristics of the Internet. Because the Internet is global in reach, it can bring citizens of many nations into contact with one another. Because the costs of Internet access are low (and getting lower over time), more people within each nation have access to it. Because its architecture supports a myriad of applications, there are strong incentives for many parties to access it. Because its management is decentralized, operational control from a central organization is essentially impossible to achieve. And because of technical advances, Internet communications can be conducted in ways that are more secure, secret, and anonymous than other communications have been in the past.

Individually and jointly, these characteristics challenge some of the traditional roles and powers of the nation state. Global networks are a medium for and a factor in globalization. They induce change in the political arena, and can bring it about as well.

If the changes render a particular political arena--a locality, region, or even a nation-state--less able to deal with some issues, policymakers may choose to transfer those issues to another political arena that seems better adapted to the task. The development of public international law is an early example of this kind of globalization of the political arena. Sovereign states react to a new challenge by negotiating an international treaty or setting up an international organization, thereby creating--at least for the issues at hand--a global political arena.³ In fact, there are a number of examples of global institutions created in the past, under somewhat different stimuli, that can be adapted to address some of the current problems arising from global networks. As early as 1910, for example, a treaty was concluded to combat the distribution of "illicit papers, drawings, pictures or objects that have an international character";⁴ today the treaty applies to electronic dissemination as well.

International treaties have not generally been so readily adapted, however. The World Intellectual Property Organization (WIPO), for example, found it necessary in 1996 to propose a new treaty that would address the special problems of protecting copyright on the Internet. Interestingly, this was a case in which the instruments provided in the international political arena effectively finessed the national political process. Those interested in extended copyright protection lost the battle in the U.S. Congress. But they basically succeeded in the WIPO, and Congress ratified the outcome when it was presented to that body in the form of an international treaty.

But international political arenas encompass more than public international law. Government agencies (e.g., the U.S. Trade Representative) promote international trade. The United Nations (UN) provides a forum for high-level international discussions and the application of political pressure. And non-public entities play important roles as well. For example, industry associations from many industrialized countries have negotiated an international uniform commercial code for electronic trade. A second example is the Internet Corporation for Assigned Names and Numbers (ICANN), whose role is to make decisions about top-level domain names; this entity may become a nucleus for Internet regulation at a much broader scale in the future.⁵

Global networks not only spur the development of global political arenas but simultaneously give local political arenas more leverage. Local community networks, such as the Cleveland Free-Net and the Amsterdam City Web, were the forerunners of digital communities that serve local (physical) communities (Box 4.1).

Moreover, the easy and inexpensive price of entry into the Internet allows community without propinquity.⁶ It has become easier to create political groupings--political arenas--along substantive rather than geographical lines. What has generally been available for professional groups is now spreading into other kinds of affinity groups based on particular political issues, ethnic identities, avocations, and casual interests or hobbies. USENET newsgroups were the first manifestation of this trend, and the proliferation of such groups continues unabated.

This trend raises some concerns, however: if these groups isolate themselves from the larger community, the domain of traditional politics might shrink drastically; or, if the groups become dominant actors in the national political arena, the political process could be reduced to little more than a battle of single interests. A further concern is that these groups, by their reach and technical capacity to gather, organize, and use information, may create de facto challenges to government by assuming some roles that are usually associated with government actors. For example, organizations like the Cyber Angels function as a kind of private attorney general. Credit-card organizations replace legal consumer protection through their commercial charge-back systems. Credit-rating agencies assume de facto regulatory power over the management of credit risk.

Sometimes the nation-state has found it wise to ignore these developments or, more to the point, has allowed them to take over the roles they have assumed by not challenging them. Yet typically these groups do not entirely replace existing institutions. Together they create a fractionated system that provides neither equal protection nor efficient service; in some instances, when several such groups emerge simultaneously, they present competitive structures whose authority and responsibility are not well defined. A challenge for the future will be to sort out these relationships in much the same way as the member states of the European Community, and the state and federal governments in the United States, have had to do.

4.2.3 Political Actors

Political arenas are populated by political actors who may function in several arenas at the same time,⁷ and global networks have made such multiple opportunities increasingly possible. But the networks have also expanded the opportunities for new political actors. They have made it more productive for organizations--such as the currently ubiquitous "nongovernmental organizations"--to participate as well. Thus, the term "actors" encompasses both individuals--citizens, members of organizations, ad hoc participants in movements--and organizations that promote an agenda or participate in a political process as a coherent entity. Like Russian matryoshka dolls-within-dolls, these organizational actors can function as whole entities or as a collection of constituents--individual actors--each potentially acting as they see fit.

These organizations--political parties, trade unions, and more loosely tied collectives such as issue-based movements--must now deal with individual-member actors who are increasingly empowered by technology. Since it is technically and economically so easy, constituencies of various organizations can insist on being better and more quickly informed, and then use that information to increase their influence in the management of the organization. On the other hand, the very same information technologies that increase the effective power of an organization's membership also make it easier for members to leave the organization and re-form around more narrowly defined issues and interests; ironically, however, the more credible the threat to exit, the more influential one's voice may become within the organization.⁸ Individuals, whether members or not, can also refocus the strength of the large group by forming ad hoc coalitions or loosely knit networks of actors. (See, for example, Box 4.2.)

Of course, the leaders of either traditional organizations or the newer Internet-spawned groups (whether part of formal management structures or an informal leadership hierarchy) need not be passive either. The new technologies give them more ways to respond to their constituencies by allowing voices to be heard and to earn credibility with their constituencies through better communication of their positions and ideas. How these factors ultimately play out, and whether they lead to a strengthening or weakening of established organizations, is likely to be determined on a case-by-case basis. For example, established organizations tend to have easier access to power and money. On the other hand, they are frequently less flexible in addressing new challenges. Which of these two factors dominates will vary from one situation to another.

The number of organizations that count as new political actors is also growing.⁹ Once global networks spread over a country, the transaction costs for setting up any new group fall dramatically. A mailing list is enough for a start, and a quite-professional home page can be prepared on a personal computer. The political effectiveness of even the most modest effort can be impressive, as evidenced by the successful International Campaign to Ban Landmines, a project organized almost entirely through the Internet and spearheaded by an individual without a power base in established organizations.

Until relatively recent times, the difference between political actors and the public in representative democracies has been fairly well understood and accepted. Political actors made decisions for the general public. Government officials or members of parliament were, of course, directly or indirectly elected by the public. However, between elections these officials relied, for the most part, on intermediaries--the media, political organizations, even spokespersons and publicists--to keep in touch with the public.

In an information age, global networks have the potential to reduce (or at least change) the role of intermediaries in the political arena.¹⁰ Broadcasting is being supplemented and sometimes replaced by narrowcasting. Networks make it easier to access information directly and can also make available tailor-made tools for selecting and interpreting information. Thus, with respect to both the provision and the interpretation of information, the trend appears to be one in which traditional intermediaries are becoming less important.¹¹ As a result, people will be less willing to pay for their services, with the consequence that they will be less visible and used still less.

On the other hand, networks also facilitate the creation of new intermediaries to help people find and evaluate information or express political preferences. Therefore, at the same time, technology creates the potential for direct action (plebiscites) and for new brokers or new political intermediaries (and the bypassing of old ones) in the political arena.

In a world of enormous information surplus, finding reliable information that is directly related to one's interests presents huge difficulties for an individual. Today's search engines (e.g., Google, Yahoo!) are one obvious manifestation of new intermediaries that help people find information. But there is every reason to expect that more sophisticated search engines and other intermediary services will help people identify the kinds of information they need and to evaluate the quality of information that they receive. This should not be surprising, given that these editorial functions are being performed today by the editors of newspapers and magazines and books. (Of course, new information intermediaries have an important commercial dimension as well, and to the extent that new intermediaries are used to support political activity, politics and commerce are not mutually exclusive.)

The emergence of powerful nongovernmental organizations (NGOs) has been aided in large part by the presence of global networks. NGOs too can be viewed as a new kind of intermediary, and networks have increased their power relative to that of governments. First, networks enable NGOs to rapidly assemble large political constituencies that can bring significant pressure to bear on elected governments. And second, networks provide NGOs with rapid access to enormous amounts of relevant information, much of which was previously in the hands of governments alone. (Some have noted that networks similarly enhance the power of governments to assemble and analyze information. But since governments had most of the power prior to the wide availability of global networks, the result is that the relative powers of governments and NGOs have shifted in favor of the latter.)

As these changes occur, the public has the opportunity to become much more active, either as individuals or through NGOs. Moreover, the value of delegating authority to elected representatives or "experts" is neither as clear nor as accepted. The technical feasibility of receiving information from a seemingly unlimited variety of sources in real time, and being able to express one's view on any issue, also in real time, leads an increasing number of people to believe that they can understand virtually any public-policy issue and that direct, popular decisionmaking is a real option. Whether this confidence is in fact justified is a different matter entirely, but such perceptions have a strong effect on the legitimacy granted by the public to the "experts."

Changes of this magnitude can affect not only constitutional structures for policymaking; they can also alter the more subtle and informal structures that are part of a nuanced and unwritten balance in society. The boundaries become blurred between public and private roles, between policymaking and the accountability for policy decisions, between political and social structures. In Germany, the informal but strong corporatist structure of politics might certainly be affected, as has the cohesion of party politics in the United States.

The question, difficult to answer at this time, is whether the disappearance of traditional intermediaries will lead to the kind of populist, or direct, democracy described above, or whether it will instead give rise to different kinds of intermediation more appropriate to a networked world. One vision of the future is described in Box 4.3.

4.2.4 Political Process

The global networks that affect political actors also have the potential to change the political process. Reduced transaction costs mean that more voices can make themselves heard before a political decision is taken.¹² But having voices heard is not the same thing as engaging in dialogue. At its worst, the former can result in the empowering of narrower and narrower interests, which then makes it increasingly difficult to reach compromises that settle a number of political issues simultaneously.

On the other hand, global networks do make it easier for political issues to surface. Traditional political actors--and those who have traditionally controlled the media--are much less able to control the public agenda when effective, low-cost means of communication are available to all people. Ad hoc groups can quickly unveil an issue, putting government officials and others into a reactive stance (see Box 4.4 as one example). The Seattle WTO protests also illustrated this point, as did the campaign undertaken against CNN by veterans when the network erroneously reported that the nerve gas sarin had been used during the Vietnam War (Box 4.5). Easier access to information and easier access to political arenas thus reinforce each other.

Global networks not only give the governed new opportunities to be heard; they also make it easier to switch political arenas (a phenomenon that Hirschman describes as "exit").¹³ Political actors are mobile and can choose the political arena in which to press their case. Nongovernmental organizations promote the protection of Amazon forests by transmitting aerial photographs of burning forests to their offices in the United States, which then distribute the information around the world and encourage other governments to apply pressure on Brazil. Money can be moved across national boundaries to markets and venues with more favorable tax structures. Businesses can cut the value chain into smaller and smaller pieces, coordinating their activities through information networks and optimizing the geographical location of each part. Nation-states find themselves negotiating with multinational corporations rather than regulating them.

Even individuals gain new exit options. Physically moving to another country or changing nationality may be as difficult and costly as before, but "virtual migration" is now possible. Individuals can cut many of their social ties in the physical environment and replace them with virtual connections to epistemic and affinity groups all over the world. Many commentators have pointed out how this disengagement is taking its toll on civil society and the sense of community.¹⁴

4.2.5 Governance Tools

Those in power often learn to use new technologies quickly. This is likely to be true with the Internet as well, and indeed there are already signs of it. Driven by initiatives and directives such as the National Performance Review, the Government Performance and Results Act, and OMB Circular A-130 (concerning the management of federal information resources), almost every department of the U.S. government has moved vigorously to develop data banks, mailing lists, and Web pages to facilitate communicating with the public. These efforts, which have generated a great deal of freely available information, build on the tradition of openness in U.S. society. But they also serve to create direct links to the public that effectively bypass the traditional media.

Some have argued that if this direct communication with the public displaces or reduces the role of the traditional media, which often serve as watchdog, it may actually reduce government accountability. On the other hand, others argue that media mergers have so concentrated power, and commercial considerations have so limited in-depth reporting and analysis, that the print and broadcast media may themselves have become part of the problem. In any case, it is highly unlikely that the public would endorse or accept a strategy that consciously limited the right of the government to communicate directly with its constituents.

Obviously, government can also use technologies to learn much more about its citizens and their activities, and to try to exercise influence and control over those activities. As an example of the latter, broadcast media have provided a powerful tool for many totalitarian regimes. Networks, by contrast, have thus far proven much more resistant to government efforts to bring them under control.

The factors underlying such resistance are multiple. One is the absence of limitations on signal transmission imposed by distance. Because the range of traditional broadcast media is power-constrained, the number of nodes that must be regulated is limited to those that service a given geographical area; beyond that area, the laws of physics attenuate the signal to negligible levels and hence there is no need for regulation.

A second factor is the many-to-many character of the Internet. In an environment in which the number of suppliers of information can be essentially as large as the number of recipients, suppressing all possible suppliers of a given piece of information is very difficult. Government has thus lost, for all practical purposes, the tool of "pre-publication" censorship. It does retain the power to sanction the transmission of information, but such a power is rather blunt, and its use entails great costs to a government whose polity is sensitive to the rights of individuals. (See also Box 4.6.)

The altered role of government in a networked world should not imply the demise of governments so much as it does the need for new strategies. Unilateral state actions need to give way to strategies of negotiation with various social actors.¹⁵ Sovereign power does not disappear, but it becomes more useful in providing leverage than in conferring absolute authority. In this networked society, governance often involves recognizing and nudging certain network-related social and economic structures. Even in settling political questions, central government is likely to rely more on self-governance by technical, commercial, or societal bodies than on detailed regulatory prescriptions. This is now commonly called "hybrid governance" or "hybrid regulation."¹⁶

The American system of governance, because it is less hierarchical, already relies on hybrid governance to some extent. However, German authorities tend to see major changes, resulting in an altered and more subsidiary role for government (Gewährleistungsverantwortung) in which it no longer is responsible for the direct provision of all public goods. Instead, it ensures that autonomous social systems act to provide those goods. This changed emphasis can be expected to affect the political process and political culture as much as the regulatory framework, but it is an example of a value shift that may be salutary.

These comments should not be seen as implying that governments' reactions to the Internet will necessarily be benign or constructive. It is not beyond belief that they may employ traditional command-and-control regulation, well-suited to the Internet environment or not, to deal with what they may see as Internet-related problems. If and when such actions occur, they may not serve democratic and freedom-preserving interests.¹⁷ For example, the U.S. Congress sought to protect minors from exposure to sexually explicit material on the Internet by passing the Communications Decency Act of 1996, a statute that was subsequently overturned on Constitutional grounds. (See Chapter 5 for a more detailed discussion.) In a nation without judicial review of legislative actions, such a law might have stood--despite its infringements on the free-speech rights of the populace.

4.2.6 Conflicts

Because global networks reduce many of the constraints of distance, different ideas, attitudes, political convictions, customs, and cultures can mix in entirely unexpected ways. The richness and value of this mix is obvious, but so too is the increased opportunity for conflict. Conflict, of course, is possible in any society, but a shared national history and a political system shaped by debates and compromises over hundreds of years help to narrow differences and provide incentives for accommodation. Reopening a debate in an international context, where one nation's hard-won resolution is pitted against another's, is likely to prove difficult, because the representatives from each nation who may be charged with resolving the conflict are necessarily closely tied to the consensus-building process within their own national societies.¹⁸

Adding to the problems of international conflict-resolution that derive from the historical and cultural baggage of the interested parties--that is, the nation-states--are the shortcomings of international political institutions. First, the administrators and professionals who run international organizations, from UN agencies to the WTO, can make no claim to the legitimacy that comes with election to office; the personnel of such organizations are appointed to their positions. There are no truly international parliaments, and as long as no supranational or even international identity emerges, constitutional reform is not likely to change this state of affairs. The German public, for example, would hardly be willing to accept a European Union political decision just because a majority of deputies from other member states agreed to it.

Second, the European Union notwithstanding, no international body has the power to actually legislate. If an international conflict is to be dealt with by legal rules, these rules must be implemented through each of the sovereign member states, whose parliaments are usually unwilling or constitutionally unable to delegate any part of their jurisdiction to an international body. But the step from international decision to national implementation is a precarious one, as much a matter of politics as legal linkage.

A third weakness of the international political arena is the Balkanized nature of its institutions. The jurisdiction of each rulemaking body is very narrow, and coordination among them is, for all practical purposes, ineffectual. Therefore the possibilities for linking issues in the give-and-take of packaging political compromises is difficult to achieve. For example, Balkanization of authority means that it is hard to link trade and nontrade issues, environment and technology transfer, or programming restrictions and intellectual-property protection. Furthermore, such powers as compensatory tax relief, commonplace within the nation-state, are also unavailable to international bodies.

Finally, it is important to consider the class of conflicts that can arise when old values and traditions are challenged by new ideas.¹⁹ This is the pluralizing, or modernizing, effect of global networks.²⁰ The user of global networks can be exposed to very different cultures, not merely as an objective abstraction but as an inherent component of the broad range of activities and information exchanges that occur through the Net. To a great extent, the foreign cultures are experienced rather than merely observed. One does not need to accept these new values or outlooks in their entirety, but it becomes more difficult to reject them entirely; thus absolute conviction may give way to a more nuanced and relative perspective.

In turn, relativism may present a challenge to one's personal (or group) system of control and accountability. It is conceivable, and often suggested, that a response to this challenge will be to force people into narrowly defined epistemic communities, aided by the technology of networks. Individuals, for example, might customize their own electronic newspapers to receive only information of specific interest to them, avoiding serendipitous exposure to information that might challenge their beliefs.

Such a response may be feasible from a technical point of view, but it is difficult to conceive of it as a successful coping strategy for the future. In a world in which the separation of the local from the global is increasingly difficult, and the commingling of values and cultures is becoming increasingly evident in the most local of activities, a successful coping strategy necessarily puts a much higher premium on tolerance. This would be not so much because tolerance is a normative value (although it would clearly qualify as one), but because it is a practical strategy for coping politically and even economically with the challenges of a modern world. Managing the transition to this new "modernity" in societies with vastly different structures may become one of the greatest challenges to political systems.

4.2.7 Cognitive Frameworks, Normative Beliefs, and Integration

Normative values allow individuals to give meaning to social reality. Moreover, society organizes itself around shared values. Common values, in other words, are a key ingredient in integration.²¹ And integration reflects how society and the state are tied together.

Social cohesion and integration are unlikely to be deeply affected if a single local value is challenged or eroded, since a society's set of values has never been totally stable over time. Traditional values have been challenged whenever a sufficiently large stratum of society has been exposed to different cultures. But society is an adaptive organism; it adjusts to the new values, rebalances the old ones, and bends without breaking.

But global networks can challenge the adaptive capacity of the system. All societies have certain values that are so fundamental for their self-definition that, if challenged, they can weaken group cohesion. And when several such values are challenged simultaneously, the rapid adaptation thus required can be highly threatening. This provides an analytical yardstick against which to measure the threat that global networks might present to a given society.

Global networks also affect social and political integration because they introduce virtual communities and global market opportunities that can compete with nation-states or local communities for the attention and loyalty of individuals. As a result, the nation state's tools for problem solving become more limited and its power to redistribute wealth diminishes. It no longer has a monopoly on its audience's attention, either psychologically or economically.²²

Given this weakened identification with the state, those who are called on to pay the bills to provide a social safety net may not be as easily convinced that it is their moral obligation to do so. Moreover, the legitimacy of formal political institutions within the nation-state is subject to greater skepticism as competing loyalties arise. On the other hand, it is possible that the easier sharing of information and opportunities for participation in governance may strengthen the nation-state in time. And government can avail itself of the new technological possibilities and try to use them to reach, even to manipulate, the citizenry. As with so many other questions concerning the effects of global networks, the possibilities are clearer than the actual outcome.

4.2.8 Global Networks as a Cohesive Force

Global networks do not always threaten values. Indeed, they can reinforce them by providing links to like-minded people who are widely dispersed--community without propinquity. Networks can also provide a mechanism for highly local or specialized groups to organize around highly non-global values.²³ Consider, for example, a neighborhood association that organizes itself via the Internet to block the establishment of a solid-waste incinerator. Not only are political conflicts easier to handle in a local setting, under the umbrella of well-established political structures, but the networks empower local constituencies by putting global voices and global information resources at their disposal.

In such a case, global networks may well strengthen local values to the point that they challenge national values, an ironic reversal in the assumption usually made about the threat of global networks. Box 4.1 and Box 4.7 provide illustrations of how global networks are promoting and building a geographical community.

4.2.9 Pressures for Change

Because political systems differ, the pressure on any given political system to adapt in the face of issues raised by global networks differs greatly from one system to another. This is obvious if one compares totalitarian regimes or fundamentalist states with modern democracies, but it also holds true among industrialized and democratic countries. In particular, Germany has a tradition of fencing political decisions off from public control and influence to a much greater extent than is the case in the United States.

For example, Germany ordinarily makes little effort to provide freedom of access to government information, apart from information relating to environmental issues. The German political process affords very few opportunities for public referenda. And in developing new policies, the German government negotiates with only a small number of strongly organized private actors. All of these German political practices have come under pressure from global networks. By contrast, the United States has a much stronger tradition of freedom of information, makes more extensive use of public referenda, and negotiates policy with a wide variety of interest groups. Thus the pressures on the U.S. political system for change are, in this respect, considerably less.

The willingness of nations to respond to pressures created by increasing internationalization also varies. Germany, under these kinds of pressures, has had some success in moving beyond its traditional command-and-control regulation. The United States, on the other hand, is more resistant to international pressures generally; its unwillingness to adapt to global standards when, for example, its social and religious values are involved may prove to be problematical. The dispute between the United States and the European Union over privacy regulations, now resolved in principle, is a case in point. (See Chapter 6 in this report for more detailed discussion.)

All democracies balance individualism, hierarchy, and egalitarian beliefs in some fashion.²⁴ Normally, political actors take these compromises as a given; indeed, they are embedded in political institutions that restrict the strategy space for political action. The stronger these institutions are, the more difficult it is to challenge the underlying compromises. When global networks do challenge them, the reaction is a confrontational rather than an adaptive process.

How fast change occurs depends on how well the political system is prepared to accommodate it. Neither the United States nor Germany has a formal parliamentary system. In the United States, the President and his administration, and in Germany, the ministerial administration (as well as powerful social actors like the unions), have either de jure or de facto veto power. This makes it somewhat more difficult to coalesce around a strategy for change.

On the other hand, both are federations (Germany, in fact, has three levels of governance, if one includes the European Union), which has given them some experience in coordinating governance across political arenas. Both countries also have powerful and independent constitutional courts, which can enable change by preventing a tyranny of the majority and protecting diverse views and life styles. The courts can also break political deadlocks in which a legislative body is unwilling or unable to act when action is needed.

4.2.10 Degree of International Conflict Over Democratic Values

The significant differences in the structure of democracy among countries may lead to differences in the reactions of these nations to the pressures for change posed by global networks. For example, nations have different perspectives on how best to ensure order and propriety on the Internet (Box 4.8). However, in contrast to the reaction where issues such as pornography, hate speech, or religious tolerance are concerned,²⁵ the different forms that democracy takes are not, in themselves, a source of conflict as long as there is little or no overlap in political constituencies.

Those differences result from the fact that nation-states are sovereign and therefore free to choose their own political institutions; inevitably, they will make different choices in implementing democratic values. Because there is little or no overlap in political constituencies, most people do not find their own form of democracy threatened merely because it differs from that of another nation-state.

Transnational political arenas would seem to represent a very different case. Here there is very clearly an overlap of constituencies and a possibility for conflict among competing political systems. Fortunately, at least for the issues of concern here, international institutions and governance structures are generally so weak, and so limited in their capacity to compel actions in the member states, that confrontation between national systems seldom occurs.

More serious conflicts arise, however, when political systems become "missionary." For example, those concerned about human rights want to see human rights protected everywhere. In order to join the Council of Europe or the European Community, Eastern European countries have to prove that their constitutions conform to democratic standards in protecting individual rights. For many nations, such an evangelical perspective raises the concern that hegemonic intentions rather than humanitarian considerations may be the real driving force. Some observers question, for instance, the U.S. government's position that the Internet should not be regulated. They wonder whether it is less a manifestation of a First Amendment principle than it is covert industrial policy, aimed at ensuring unconditional access by American e-business to other countries.²⁶

This leads to a final concern. Although different national concepts of democracy can, in principle, coexist relatively easily in the era of the Internet, the Internet itself is a global phenomenon. Thus if one nation- state attempts to protect or foster its particular national form of democracy by attempting to shape the Internet in a certain way, the normative differences between states may give rise to a significant international conflict over policy regarding the Internet. Box 4.9 provides an illustration.

4.3 CONSTITUTIONAL POLICY

Global networks have great potential to induce change. They can enhance the effectiveness of some political arenas to the detriment of others, give some political actors power and take it away from others, and strengthen some governance tools and weaken others. They can alter political processes, the character of political conflicts, or cognitive frameworks and normative beliefs. They can even change the relationship between the society and the state. It would be naive to expect those who currently hold political power to just let all this happen. This sets the stage for the debates, conflicts, and structural adjustments that are part of the evolution of what might be called "constitutional policy," to which we now turn our attention.

4.3.1 Accommodating Constitutional Policy to Global Networks

Political actors are likely to try to encourage or block a particular effect of global networks on political structures, depending on their assessment of its consequences. But as a practical matter it is really quite difficult to anticipate either the precise way in which the networks will affect each part of the system or all of the consequences that may result from trying to intervene. Given the complex interactions that occur between political and social subsystems,²⁷ any intervention--whether in the form of new regulations, political co-optation of networks, or even changes in the structure of political institutions--can lead to reactions by each subgroup to preserve the status quo or to maintain the momentum of change. This seems particularly likely when players from the first-generation Internet communities, who tend to blend egalitarian with anarchic elements, are involved.

Although it is beyond the scope of this study to deal with the question of whether there is any compelling reason to encourage one form of democracy over another, the question of how a constitutional change can come about under the influence of global networks is quite appropriate. Democracies deliberately make such change difficult in order to reduce the likelihood that well-organized political interest groups can effect fundamental structural alterations merely to suit their agendas.

The U.S. Supreme Court and the German Constitutional Court play key roles in guarding their respective constitutions against such political manipulation. But global networks can, in a de facto sense, alter constitutional protections or frustrate constitutional goals even without any formal change in the constitution. Given that possibility, a failure to modify the written constitution, or a failure to adjust the informal mechanisms and interpretations that supplement the written provisions of the constitution, may sometimes lead to undesirable changes in a nation's fundamental political structure.

The German constitution might be somewhat better prepared to parry such a challenge. Both countries have constitutionally protected fundamental freedoms, and both empower their respective constitutional courts to interpret them. But the United States's interpretation relies on rights that are explicitly mentioned in or at least implied by the U.S. Constitution, and the U.S. Supreme Court tends to narrow the constitutional issues before it as much as possible, at least by comparison to the German Constitutional Court. The German Constitutional court, on the other hand, has greater leeway for adaptation, thus allowing it to act on the basis of broader considerations. For example, although German Basic Law requires that any governmental interference with freedom or property needs a justification, almost any reasonable policy is accepted as a justification, provided that the proposed restrictions can be shown to be necessary to achieve the desired end.

4.3.2 Internet Policy

Given the reluctance of policymakers to undertake constitutional changes to adjust to the new circumstances presented by global networks, they are likely to focus on policy instruments that would allow control, regulation, or even exclusion of the Internet for the purpose of dealing with the tensions it generates. But none of those approaches is easy to implement. Only two countries in the world have opted for a policy of completely forbidding access to the Internet: North Korea and Myanmar. Singapore and Vietnam have tried to force all Internet traffic in and out of their countries through a few tightly controlled conduits, but they pay a high price for such control: access by their citizens to worldwide information sources is sharply reduced. For countries such as the United States or Germany, such Draconian action has never been proposed.

Short of actually blocking access to the Internet, countries find themselves with options of widely different effectiveness, as illustrated by Germany and the United States. Because of U.S. dominance in the global information technology industry and among large-scale Internet service providers, U.S. policy actions that force change in the Internet-related products and services offered by U.S. companies are likely to affect the development path of the Internet globally. On the other hand, even though German authorities may occasionally sanction a global network (as they did in the CompuServe cases), their influence is limited and can hardly be expected to have a significant effect on the shape of the Internet.

Because of the interconnectedness of the Internet infrastructure (e.g., standards and protocols), if one nation actually effects some change in the structure or operation of the Internet, that change will affect operations everywhere--but not necessarily in the same way or with the same consequences. For example, if the United States forced a technological change to implement its national policy of limiting the distribution of undesirable material, it might well build into the system the technical means for an authoritarian regime to extend its censorship control (a point discussed further in Chapter 5).

It would be simplistic to view Internet policy as entirely a question of regulation or control aimed at preserving traditional political structures, given that global networks offer a new tool for achieving important and very broad political goals. Both the United States and Germany are committed to a political structure that can provide for a range of views to be heard and considered and, at the same time, encourage integration of those views and the people who hold them into a coherent society.

To satisfy the first goal, ideological, political, and ethnic minorities need to have access to the public forum, providing for a kind of cultural biodiversity that introduces fresh insights and makes political innovation possible. This goal has not been easy to meet through traditional electronic media. The radio-frequency spectrum is limited and crowded, and cable channels are expensive, as are broadcasting facilities of significant power. Constitutional courts have tried to overcome these inherent limitations by instituting fairness doctrines, with mixed results.²⁸ By contrast, the Internet and its related technologies make the goal of access much easier to attain. The spectrum is virtually unlimited, the costs are low, and public policies can easily be put in place to promote Internet literacy, wide availability of terminals in schools and libraries, and help for any group interested in setting up a Web page.

The situation is reversed with respect to the goal of societal integration. With traditional electronic media, the small number of program originators, the high set-up cost, the one-to-many nature of broadcasting, and the typically passive role of the message recipients are all conducive to societal integration. Moreover, the small number of programmers also makes it easy to impose and enforce policy.

The Internet makes societal integration harder to achieve because individuals have much greater autonomy both as transmitters and recipients of messages. Indeed, the technology allows societal atomization to an unprecedented degree. Some technical approaches have been proposed to promote integration in the Internet context--for example, "push" technologies that force users to open a publicly designed or prescribed window before they can get access to any other site. But there are obvious objections to such an imposition on personal freedom. For the time being, therefore, it appears more feasible to depend on network-based technologies to serve the goals of access and diversity, and more traditional broadcast media to promote social and political integration.

It should be noted, however, that technological convergence may require a reconsideration in the future of how best to achieve a balance of diversity and integration. Technological developments are gradually blurring the distinctions between various communication media. DSL technology can increase the bandwidth of telephone lines so that they can support motion-picture transmission or other kinds of broadcasting; cable-television lines can now support Internet communication and real-time voice communications; and various kinds of compression technologies are increasing broadcast-channel availability, thus allowing more customized programming. In time this may alter the view of broadcast media as passive and integrative, and Internet media as active and diverse, but for the near and mid-term future the distinction remains useful.

4.3.3 Networks and Representative Versus Direct Democracy

Democracy theorists have been attracted by one feature of global networks in particular: the fact that it is now technically and economically possible to let people decide political issues directly. This reopens the debate over representative versus direct democracy and the desirability of a shift of law-making jurisdiction from a legislature to the electorate.²⁹

Different countries have had different experiences with plebiscites. In Switzerland, plebiscites seem to work reasonably well. But many analysts believe that the demise of Germany's Weimar Republic was accelerated by an overly broad use of that instrument. The "electronic town hall" would appear to increase input legitimacy, because it increases participation. On the other hand, it is more difficult to ensure that voters are as fully informed about complex issues as one might hope legislators are, and so output legitimacy may suffer. Voters may be lured into the illusion that access to information through global networks is tantamount to complete understanding. Moreover, legislation by referendum usually requires that the issue at hand be reduced to a simply phrased question. Experience has shown that the outcome of a referendum depends strongly on how the question is phrased,³⁰ and most experts agree that it is all but impossible to keep a question simple and, at the same time, capture important nuances.

Of course, legislative decisions may not be fully informed either, and the traditional political process does not necessarily lead to the most desirable outcome. For example, political actors may be motivated by concerns other than solving the policy problem at hand.³¹ The legislative agenda can be shaped by the media, scandal, or a host of other factors rather than by substantive priority, and logrolling or political influence may determine outcomes as much as the needs of the polity.

The fact is that neither popular nor legislative approaches to problem solving are free from risk--or without merit. A larger role for direct democracy could serve three purposes. It could increase the participation of the public in decision making, resulting in a greater sense of ownership and responsibility. It might be an important tool in promoting societal integration. And it could make those in political power more accountable to the public. If the threat of plebiscites, formal or informal, exists, it is more difficult to ignore the public will between elections. In that respect, some opportunities for direct democracy can be part of the system of checks and balances in the political structure.

It may well be that the most important contribution of networks will not be to replace representative democracies with referendum/plebiscite-based direct democracies, but to offer a rich range of intermediate possibilities. Such options could enhance participation in governance, increase the diversity of viewpoints in public debate, and place additional pressure on public officials to be responsive and accountable. The mere potential of global networks to redistribute political power forces decision makers to explain their actions more clearly and thoroughly.

Referenda can be used to express public views without actually shifting formal decision-making power. Even without formal referenda, the ease of network communication makes it possible for many different voices to be heard. And with broader freedom-of-information policies, the new technologies can allow the public to gain increased access to government files.³² By shedding brighter light on the processes of government, the ability of the public to hold its elected officials accountable for their actions may thus be enhanced.

4.3.4 The Impact of Networks on the Evolution of Political Landscapes

Political structures need to be open to change over time, both because new technologies introduce new issues and because the value judgements of those governed may change. Society's formal institutions and political culture need to be prepared for evolution, to be able to respond to fresh ideas and be attentive to new challenges. The healthy society develops mechanisms to adapt in much the same way an ecosystem does, encouraging processes of variation and selection. The analogy has limitations, however. Both variation and selection have dangers for a society. The former promotes fragmentation of the body politic, the latter encourages single-issue politics. Those are dangers that societies need to be aware of but cannot easily avoid.

Global networks affect variation and selection, but they do more for the former than the latter. They provide a means for giving people with new ideas wide distribution and a means for people seeking ideas to find them. In doing so, they reshape political arenas, empower political actors, and reconfigure political processes. Their effect on selection is less clear. Do they lead to a more thoughtful process of weighing and implementing ideas, or do they provide an opportunity for special interests or single-issue groups to promote changes that do not serve the broad polity well? If the latter is the case, one might view an appropriate regulatory strategy for global networks as one that promotes globalization and pluralization to increase the range of ideas available, but restricts the role of the networks in the actual process of lawmaking.

Central government policies undertaken to deal with social problems almost always have distributional consequences that affect one group differently than another. If a way cannot be found to compensate a constituency that is negatively affected, the government stands to alienate that group. In the modern world, networking technologies provide opportunities for such groups to leave the polity, virtually or in reality. For single-issue constituencies, the opportunities for government to craft some kind of compensation are quite limited. Thus, the very network that increases a group's power to press its case also decreases its need or willingness to accept a negative decision to serve the greater good.

Although the issues discussed in this section are exacerbated by global networks, they are really part and parcel of the modern world. Even if a country was prepared to cut its population off from global networks, it could not avoid many other forms of globalization. The nation-state is inexorably losing its traditional role as a monopolistic provider of a highly aggregated bundle of public goods. More and more, it is under competitive pressure from other providers--other nation-states, and different structures of formal and informal political organization.³³

At the same time, national political systems continue to have significant power. The roles and services that governments provide, as well as their authority and effectiveness, may be attenuated, but they will remain vital to their constituents. In that sense, the nation-state may be altered, but it is not threatened. States will still provide social services, education, physical protection, public health, and environmental stability and will fulfill the host of functions that are associated with place and identity. This will give a state the legitimacy and power to retain certain authority and to negotiate with other nations to protect its rights and the rights of its citizens. Most international treaties are examples of the effectiveness of national systems to organize a global order, even in the modern world. One may view this as a practical and acceptable alternative to con-stitutionalizing the world order,³⁴ and one that is perhaps more important than ever before precisely because of the advent of global networks.

But given the ad hoc nature of this globalizing process, the future is quite open-ended, in both descriptive and prescriptive terms. Nation- states and their constitutional orders will certainly continue to come under competitive pressure. Those governed will have increasing leeway to move away from a nation-state's regulatory power and, clearly, the more credible the threat to move, the more carefully nation-states will have to listen to their demands. But because one cannot accurately predict which interest groups will mount the most credible threats at any particular time, it is difficult to know what the nature of the competitive pressures is most likely to be or how nations will respond. Will democratic institutions be harmonized? If so, will we see "a race to the bottom," a "race to the top," or an entirely changed governance structure? And if we do see the emergence of a significantly changed structure, on what basis should we judge it to be a good or a bad thing?

Notes

¹ Seyla Benhabib, ed. 1996. "Toward a Deliberative Model of Democratic Legitimacy," Democracy and Difference. Contesting the Boundaries of the Political, 68-94, 69. Princeton, N.J.

² See for example, Computer Science and Telecommunications Board, National Research Council, 2002, Broadband: Bringing Home the Bits, in press.

³ Klaus W. Grewlich. 2000. "Conflict and Good Governance in 'Cyberspace,'" in Christoph Engel and Kenneth Keller, eds., Governance of Global Networks in the Light of Differing Local Values, Law and Economics of International Telecommunications, Vol. 43. Baden-Baden: Nomos, 237-264, 239.

⁴ Treaty of 04.05.1910, RGBl. 1911, 209, as well as protocol of 04.05.1949, UNTS 30, 3 consolidated edition UNTS 47, 159. The Federal Republic has not yet signed the changed treaty, however.

⁵ For details, see Klaus W. Grewlich, 1999, "Governance in Cyberspace. Access and Public Interest in Global Communications," Law and Electronic Commerce 9: 193-216, The Hague; and, critically, Milton Mueller, 1999, "ICANN and Internet Governance. Sorting Through the Debris of Self-Regulation," Info 1:497-520; and Laurence R. Helfer and Graeme B. Dinwoodie, 2001, "Designing Non-National Systems: The Case of the Uniform Domain Name Dispute Resolution Policy," William & Mary Law Review 43, October.

⁶ Michael Thompson. 2000. "Global Networks and Local Cultures: What Are the Mismatches and What Can Be Done about Them?," in Christoph Engel and Kenneth H. Keller, eds., Understanding the Impact of Global Networks on Local Social, Political and Cultural Values, 2000, 113-129, 123.

⁷ Fritz W. Scharpf. 1997. "Games Real Actors Play." Actor-Centered Institutionalism in Policy Research 51.

⁸ Albert O. Hirschman. 1970. Exit, Voice, and Loyalty. Responses to Decline in Firms, Organizations, and States. Cambridge: Harvard University Press.

⁹ Klaus W. Grewlich. 2000. "Conflict and Good Governance in 'Cyberspace," in Christoph Engel and Kenneth Keller, eds., Governance of Global Networks in the Light of Differing Local Values, Baden-Baden: Nomos, 237-264, 251.

¹⁰ Christoph Engel. 2000. "The Internet and the Nation State," in Christoph Engel and Kenneth H. Keller, eds., Understanding the Impact of Global Networks on Local Social, Political and Cultural Values, 201-260, 222. Note also that the situation is quite different in e-commerce, where the Internet, and information technology more generally, are increasing the opportunities for intermediation. See Chapter 7 of this volume.

¹¹ Stephen Coleman. 1999. "Cutting Out the Middle Man: From Virtual Representation to Direct Deliberation," in Barry N. Hague and Brian D. Loader, eds., Digital Democracy, 195-210.

¹² Raymund Werle. 2000. "The Impact of Information Networks on the Structure of Political Systems," in Christoph Engel and Kenneth H. Keller, eds., Understanding the Impact of Global Networks on Local Social, Political and Cultural Values, 159-185, 174.

¹³ Albert O. Hirschman. 1970. Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States.

¹⁴ See, for example, Robert Putnam, 2001, Bowling Alone: The Collapse and Revival of American Community, New York: Touchstone Books.

¹⁵ Scharpf (supra note 7) 200.

¹⁶ More on hybrid governance is contained in Chapter 8.

¹⁷ For more discussion on this point, see, for example, part III of A. Michael Froomkin, 1998, "The Empire Strikes Back" ("The Great Looming Internet Irony"), Chi-Kent L. Rev. 73:1101.

¹⁸ Miles Kahler. 2000. "Information Networks and Global Politics," in Christoph Engel and Kenneth H. Keller, eds., Understanding the Impact of Global Networks on Local Social, Political and Cultural Values, 141-157, 146 and 147.

¹⁹ Sherry Turkle. 1995. Life on the Screen: Identity in the Age of the Internet, New York: Simon and Schuster.

²⁰ Wolfgang Kersting. 2000. "Global Networks and Local Values. Some Philosophical Remarks from an Individualist Point of View," in Christoph Engel and Kenneth H. Keller, eds., Understanding the Impact of Global Networks on Local Social, Political and Cultural Values, 9-27, 14 and 21.

²¹ Klaus G. Gruner. 1994. "Cognition and Economic Psychology,"in Hermann Brandstätter and Werner Güth, eds., Essays on Economic Psychology, 91-108.

²² Kahler (supra note 18) 147.

²³ Saskia Sassen. 1998. Globalization and Its Discontents. Essays on the New Mobility of People and Money.

²⁴ Michael Thompson, Richard Ellis, and Aaron Wildavsky. 1990. Basic Cultural Theory. Boulder, Colo.: Westview Press.

²⁶ Jacques Arlandis. 2000. "The Clerk, the Merchant and the Politician," in Christoph Engel and Kenneth Keller, eds., Governance of Global Networks in the Light of Differing Local Values, 105-117, 109.

²⁵ Grewlich (supra note 9) 241-246.

²⁷ For the Internet as a subsystem the argument is made in Dirk Baecker, 2000, "Networking the Web," in Christoph Engel and Kenneth H. Keller, eds., Understanding the Impact of Global Networks on Local Social, Political and Cultural Values, 93-111, 96.

²⁸ For an account, see Cass Sunstein, 1995, Democracy and the Problem of Free Speech, The Free Press.

²⁹ See Jeffrey Abramson. 2000. "Democracy and Global Communications," in Christoph Engel and Kenneth Keller, eds., Governance of Global Networks in the Light of Differing Local Values, 119-130.

³⁰ See, for example, R. Nisbett and L. Ross, 1980, Human Inference, Prentice-Hall.

³¹ Daniel A. Farber and Philip P. Frickey. 1991. Law and Public Choice, 22.

³² As discussed in Chapter 8, there are significant differences between the United States and Germany in this respect. Freedom of information is already a much more broadly applied principle in the United States than in Germany.

³³ Jean-Marie Guéhenno. 1998. "From Territorial Communities to Communities of Choice: Implications for Democracy," in Wolfgang Streeck, ed., Internationale Wirtschaft, Nationale Demokratie. Herausforderungen für die Demokratietheorie.

³⁴ Jochen A. Frowein. 2000. "Konstitutionalisierung des Völkerrechts," Berichte der Deutschen Gesellschaft für Völkerrecht 39:427-448.