“Home is where the Wi-Fi connects automatically.” There is some truth in this slightly stereotyped statement: our daily life can no longer be imagined without digital connectivity, and no economic activity would take place without devices and networks that connect to the global web.
All these connections are enabled through standards – technical agreements written in network specification and protocols and that codify characteristics of electronic systems. But despite these standards’ crucial role in almost every economic and societal aspect, not much is known about them, especially from the legal perspective.
This may be explained by the fact that traditionally, standards are considered voluntary, while laws are mandatory. Standards are developed by companies, enterprises, and private sector organizations; laws are developed by the legislators. However, standards may also become mandatory by being referenced or incorporated in the legislation or legal contracts. In the absence of (effective) legislation, standards may wield significant regulatory power and result in a strong compliance pull due to the market mechanisms. In the global trade arena, standards for digital technologies are increasingly becoming a matter of national security, raising concerns of protectionism and global competition between in the high-tech markets. Hence, even if they are not laws, connectivity standards set normative obligations that govern global network society.
Examining standards as a form of regulation, while bearing in mind their economic, societal and (geo)political role, is thus increasingly important for legal scholars.
“The Law and Practice of Global ICT Standardisation,” out with Cambridge University Press in February 2023, views connectivity standards from the perspective of their legitimacy in the current global rulemaking. To that end, it examines the legislation applicable to standards development, the governance mechanisms of the leading private standards bodies, and the application of these public and private rules in practice. Bearing in mind different ways how standards can be legitimized, the book asks two questions: 1) to what extent do current standardization processes comply with the applicable legal requirements, and 2) should be an increased governmental scrutiny of private sector standardization activity.
The first part of the book studies different regulatory levels that govern standardization activities, the interplay between these levels, and the nature of legal constrains they place on standards bodies.
Standardization is regulated in many legal frameworks, including international trade law and regional or national competition and administrative laws. The relevant rules take a form of best-practice obligations regarding the design of standards development processes. These obligations are provided by a set of broadly interpreted procedural principles, which include transparency, openness, and consensus, and which are open for interpretation by standards bodies and market players. Public law legitimacy of connectivity standards thus hinges upon and is provided by private actors.
Given this finding, the book proceeds with exploring institutional aspects of connectivity standardization by systematically examining governance and decision-making processes of seven leading standards bodies.
These institutions of private governance each have their own organizational rules and a wide range of administrative and technical procedures. But much as these rules must follow the broadly prescribed legal requirements, they also have to cater to the need wishes of the standards bodies’ membership.
Standards bodies are heterogeneous. Each of them emerged from unique cultural settings, historical background and institutional processes. It is then not surprising that their interpretations and implementations of legal rules related to the procedural and substantive guarantees also vary. Procedural legitimacy of connectivity standards is thus provided by tailored operational frameworks and long-standing cultural traditions of expert-driven communities.
The book continues with an evaluation of the legal rules and procedures of standards bodies in the light of the current tendencies and practices in the industry. This part of the book asks: do standards development processes that comply with the set of procedural requirements lead to more effective standards?
Through case studies and interviews with industry experts, the book observes that the larger part of the standardization community appears generally satisfied with the governance of most standard bodies. However, frustrations with standardization processes arise once they lead to exclusion – either from the decision-making, or from the market because of particular decision taken during a standards development process.
Even if procedures that are closed an exclusive generate faster and more efficient results, they negatively affect the market uptake of connectivity standards. And while technical quality seems to trump procedural quality, open and inclusive standardization ensures wider stakeholder input and leads to better qualitative results in the long run. Expert legitimacy of connectivity standards is thus inseparable from their procedural and public law legitimacy.
This book observed a number of gaps in public law on standardization, procedures of private sector standards bodies, and the practical application of these public and private rules. A particular striking is that all sets of rules lack in acknowledging connectivity standards as a form of global governance, and institutions developing these standards – as global institutions of economic activities. As technology evolves, so does its regulatory role and normative power. The question is then whether the current regulatory landscape will ensure that connectivity standards reflect not only the technological reality, but also societal considerations.
Legitimacy of connectivity standards is multifaced, and different actors and communities have a different take of what a “legitimate” standard and standards development processes should be. Similarly, it is nearly impossible to pinpoint the exact reasons of standards’ ineffectiveness, or their failure. Speaking he language of the classics, “Successful standards are all alike; every unsuccessful standard is unsuccessful in its own way.”
To adapt to the legitimacy challenges presented by the technological and regulatory developments, standards bodies require increased flexibility. To comply with the set of legal requirements, however, they require clearer processes and external oversight. These two rather opposing objectives are equally important for standardization processes and should be considered by regulators and standards bodies when proposing any changes in the public laws or in the procedures of private bodies.