As I wrote in "Government Programs" and "Brief Thought on Government Subsidies", I belong to a number of mailing lists on internet governance, and sometimes the topics are of interest. One that struck me as particularly interesting was a discussion of the idea of divorcing the internet from national law, that is creating some super-national body to draft and apply laws to the internet. It was quite popular with the list members -- the cynical bit of me would say maybe because they expected to be the ones doing the drafting -- but a moment's thought made me doubt that it would work, if states would even agree to it.
We can see a real world example of this in that favorite super-national body, the United Nations, or in the various international courts and war crimes tribunals. Admittedly the latter seem to accomplish more than the former, despite being much smaller and less costly, but both provide us with some examples of what problems a super-national internet legal body would have.
The UN, as we all know, often devolves into an impotent debating society, as its enforcement power is largely tied to the armies of a few large members -- especially the US -- as is the majority of its funding. If those large members oppose an action, nothing generally happens, or, at most, a resolution is passed which has no teeth. In addition, the veto ability of many members make certain actions simply unthinkable. Beyond that, the "one nation, one vote" nature means certain nations -- e.g. Israel -- will always get the short end of the stick, as perennial rivals outnumber them, and they lack sufficient champions to balance out the sheer number of such rivals and those currying favor with them.
We can see the the same situation, and the reverse in various super-national courts. So long as they are doing what is desired by a number of sufficiently strong nations, they function well and have strong enforcement powers. If they desire to arrest someone with sufficiently strong national protection, odds are good the opposite will happen, and no trial will be held. They are largely at the mercy of the larger nations.
So, how would this experience suggest a super-national internet would fail?
First, and most obviously, it would only be as effective as the member nations allow. Despite the theoretical belief that the internet is "non-geographic" the truth is, the users are tied to geography as are the component parts. As we have seen with China and its blocking or censoring of various internet services, a nation unhappy with this super-national body could, effectively, create a national network, cut off from the super-national web, or, at least, control access and apply its own laws in addition to those of the super-national body.
Second, it would only have the investigative and arrest powers the nations chose to give it. If it decides to make something criminal that a given nation opposes, it would have no way to force that nation to comply. Likewise, if a given nation wants to criminalize something, nothing would prevent it from piling laws on top of those set up by the super-national internet body.
Third, if it truly went out on a limb, it would find that it would end up bowing to the larger members. As I said, its enforcement powers, and probably funding, would rely on the contribution of money, men and legal authority of some large nations, if they withdrew it would become a small, regional oddity. Thus, it would end up being required to bow down before several large nations. And, in the end, as they would possibly differ on what was right, it would inevitably upset one or more, which would, over time, spell its demise. In short, no matter how it worked, even if it tried to be as neutral and inoffensive as possible, it would end up failing.
How? Let us look at a few situations.
For example, how would it handle internet gambling? Most European nations, in fact most nations period, are not opposed to gambling. On the other hand, the US has a pretty confused stand on gambling (see "Hypocritical Government" and "Nonsensical Regulation"), and often starts to take steps to prohibit it. So, what if the US went through a puritanical phase and tried to ban internet gambling? How would this body deal with that? Either decision would be likely to cause a walkout, either of the single largest source of revenues, or of a block of many, many smaller nations -- though many are still wealthy.
Or what about control of content? Many nations have some content they want to control. China is the most obvious, but they are not alone. Recall the US stand on exporting "war munitions" such as encryption protocols. Or the UKs Official Secrets Act. All of these are nation-specific and enforcing them would likely upset other members. So what does the body do? Allow one and deny the others and you are going to be charged with favoritism. Allow all and the internet will be fairly hemmed in with controls. Allow none and the nations are likely to withdraw. So, how can this be handled?
I could go on, but I think you get the picture. Whatever is done, there will be nations opposed, and with an easy solutions available -- returning to national control -- I doubt many would hesitate. And so, in the end, like most super-national bodies, I think any sort of internet legal body would fail for a number of relatively obvious reasons.
The fact that so many who try to draw up internet governance policy fail to see this tells me a lot about out policy wonks around the world. Mostly that they have unrealistic beliefs about the effectiveness of super-national bodies, and too little understanding of national governments and their policies.