Some Reflections on the Role of International Law in Internet Governance

　　Spam, not like governments or courts, does not care about the borders among countries.

　　Introduction

　　In 2005, the second session of the World Summit on the Information Society （“WSIS”） convened at Tunis, discussed the issue of internet governance formally and published the final document of “Tunis Agenda for the Information Society”， which was hosted by the International Telecommunication Union （“ITU”）。 However, it did not produce any international legal rules about internet governance substantively. [1]

　　Based on the background, the paper attempts to examine and analyze the features and potential reasons of the international legal structure of the E-mail regulation and cross-border enforcement as a case study of internet governance.

　　Some developed countries have begun to make laws and regulate the sending and contents of the E-mails since 2003 in order to promote the development of electronic commerce and reduce the threat and cost of spam. However in practice, the effects of these legislations and domestic regulation are not good no matter what the legal approach and regulation methodology these countries have adopted. One of the reasons is the globalization of E-mails and the non-boundaries of internet.

　　Therefore some countries began to explore the mechanism of the international cooperation about the E-mail regulation and cross-border enforcement, and thus results in some bilateral and multilateral declarations or memorandum of understanding. However, the international mechanism and structure of current anti-spam regulation and cross-border enforcement cannot solve the problems of global spam. In sum, there are three features of international legal structure about anti-spam. First, there is not any global agreement that is wide enough to cover the global internet. That means there is no international law which is binding. Second, the number of the participants is not only small, but also most of the participating parties are the developed ones. Last, the contents of international cooperation are limited within the legal enforcement, not including the legislation and criminal justice of anti-spam.

　　Why? The reasons for the legal structure of international E-mail regulation and cross-border enforcement are complex. One reason is the particularity of internet and issue of the spam; other reasons are related with the divergence among the domestic legislation and regulation against spam, which makes the cross-country coordination of the state interests and values in respect of the regulation of E-mails difficult.

　　Specifically, internet is new and its application in the social life and civil society has lasted no more than twenty years. The international consensus regarding the anti-spam and E-mail regulation does not emerge from the debate and divergence, and the international law cannot come out without the consensus. The second reason for the formation of international legal structure regarding the regulation of E-mail and extraterritorial enforcement is that it is a complex and small issue. That the issue is small means that it is not important enough and prior within the agenda of most countries. That it’s complex means that the regulation of E-mails involves many aspects of rule of law, including the policies of communication, trade and competition, the constitution protection of speech freedom, the protection of privacy （Personal Data）， the protection of consumers, and the identification of crimes. So the international coordination of the legislation, enforcement and judicial system of anti-spam is very difficult.

　　The international regulation of E-mails is one of the sub-topics of internet governance. The current situations and problems of international legal structure of E-mail regulation and cross-border enforcement reflect the barriers to the international cooperation of internet governance in the future.

　　1. The necessity of international cooperation in national governance of E-mail

　　The reason for the necessity of E-mail supervision is the majority of E-mails are spams. Spam ,which is also called Unsolicited Bulk Mail, is the mail which violates the desire or is valueless to the receiver with intentions of the senders mainly direct marketing. There is no doubt that the precise definition may be different from country to country. In some country, spam is restrict to the commercial intention of direct marketing, but some other countries are not, but the essential nature of spam is the receives` needlessness, in a word. Never the less, definition diversity do not impact our discussion on the following questions.

　　1.1　　Why do Spam Need Supervision?

　　Internet and E-mail give facilities to the information communications among people, whereas, spam encumbers the communication function of E-mail and internet. First, it is a kind of intrusion to the internet users. Receivers need both time and energy to eliminate spam, in order to distinguish and pick up the needed ones. It is investigated that 62% of the internet users have to use at least five minutes on the elimination of spam on average. Further more , there is proximately a quarter who needs ten minutes , two percent who needs more than half an hour to distinguish and delete the unneeded mails manually.[2]