When we think about connectivity, we usually imagine complex IT infrastructure and high-tech devices powered by cutting-edge scientific research. Rarely do we consider these technologies as a form of regulation, or the power behind them as regulators. And yet, what would our daily life be without the ability to transfer data from one device to another? How will we be able to interact with different people, operate complex electronic equipment, and take part in almost all modern activities without interconnection between different electronic systems?

Connectivity as an enabler of global economic activity is not merely an attribute of the modern digitalized society. Decades and centuries ago, inventions such as telegraphs, telephones, and the first internet network protocols have shaped interactions between various stakeholders of the global economy. This trend continues today with the 5th generation cellular networks (5G) and the Internet of Things (IoT), a new ecosystem of connected environment.Footnote ¹ These and many other technological and societal innovations cut across different fields and influence the behavior of States and companies alike.

Connectivity technologies are codified in technical documents and specifications: Information and Communication Technologies (ICT) standards.Footnote ² By prescribing methods applied in electronic devices, coordinating transmission frequencies and defining protocols and procedures for internet connection, ICT standards provide written “rules” that hardware and software developers should follow for their products to operate properly and be compatible with other products on the market. The functioning of many electronic machines is based on hundreds of such ICT standards developed by different actors in technical committees of various industry-driven organizations.Footnote ³ Being the product of science and market demands, ICT standards impose de facto norms on community, setting uniform expectations for manufacturers, consumers, and governments.

Not surprisingly, due to their far-reaching implications, ICT standards are characterized by the presence of many, often conflicting, interests. Companies compete for market power,Footnote ⁴ governments express security concerns related to the increased network’s connectivity,Footnote ⁵ and civil society demands more say in technical decisions that are of societal importance. Moreover, ICT standards are paradoxical: they are neutral, yet extremely politicized; they are for everyone’s benefit, yet they exclude; they have profound business impact, yet they are developed by noncommercial organizations. Developed by engineers as a part of digital infrastructure, ICT standards are not an isolated technological phenomenon; rather, they have far-reaching regulatory, political, economic, and societal consequences. As ICT standards are increasingly becoming endowed with policy-making and public interest functions, they should be analyzed in the broader institutional and regulatory context in which they are developed and enforced.Footnote ⁶

Academic scholarship in the field of ICT standardization is typically devoted to analyzing interactions and competitive forces among industry players in standards development committees, for instance, when selecting technologies that are essential for standards’ functioning.Footnote ⁷ There has been hitherto little research on how these technical committees are governed and which procedural guarantees do they offer to those affected by their standards.Footnote ⁸ Likewise, a qualitative analysis of Standards Development Organizations’ (SDOs) rules and processes remains strikingly missing from the relevant literature, creating a growing gap between the theory and practice of ICT standardization. A holistic inquiry into the ecosystem of ICT standardization, its law, and practice is necessary for the broader understanding of the resilience of standardization as a mechanism of global governance and the evolvement of SDOs as regulatory institutions.

This book explores to what extent does current ICT standardization comply with the applicable procedural and substantive requirements, and whether increased scrutiny of SDOs operating in the ICT sector is desirable to guarantee due process. In this endeavor, it goes beyond theoretical consideration by evaluating SDOs’ rules and procedures in the light of current practices and tendencies in the industry. On the normative side, this book defines the rules for SDOs to follow under the current regulatory frameworks, focusing on procedural and substantive guarantees that should be respected in standards development. A further descriptive analysis explores the extent to which SDOs comply with these rules by analyzing their mechanics and institutional architecture in the context of the applicable regulatory frameworks. To understand whether and how SDOs’ processes affect the legitimacy, effectiveness, and quality of their standards, the book continues with a qualitative empirical study that reveals experiences of industry experts with the processes of different SDOs.

The study is premised on two hypotheses: first, that, given the increased regulatory importance of ICT standards, it has become challenging for SDOs to offer sufficient procedural and substantive guarantees to satisfy all stakeholders that have varying – and sometimes even conflicting – interests in standards development; and, second, that increased scrutiny of SDOs’ process by governmental authorities, when performed with caution and respect to the industry demands, can improve the quality of SDOs’ decision-making and, ultimately, the effectiveness of their standards.

Methodology

Largely conducted from a legal perspective, this study relies on an interdisciplinary methodological approach.Footnote ⁹ It combines desk research that involves reviewing the relevant primary and secondary sources of law and an evaluation of theoretical findings in an empirical study performed by two types of qualitative research methods, namely, case studies on procedural disputes in SDOs and semistructured interviews with experts from SDOs and private companies.

This study starts from the premise that SDOs are subject to external constrains placed on them by public law, and internal constraints that stem from the operational rules established by the SDOs’ governing authorities. While the latter are developed through the mechanisms of self-regulation and can be influenced by SDOs’ members and participants, the former are in principle not controlled by the SDOs. Yet, as the rules of public law affect the design of SDOs’ governance, so do the operational rules of SDOs affect the instruments of public law. For this reason, it is crucial to analyze all layers of standardization regulation, their interactions and linkages, and the ways in which they influence each other and challenge each other’s relevance and appropriateness. And while this study is rather limited due to a small number of SDOs it examines, its findings facilitate broader understanding of the institutional context in which ICT standards are developed and invite to view SDOs’ governance from a broader perspective of ICT standards as suppliers of private regulation.

Despite certain methodological and technical limitations, the empirical study adds practical relevance to the theory. When juxtaposed with the findings of the normative and descriptive parts of this research, the findings of the empirical study, albeit anecdotal, allow to draw further conclusions regarding the current state of due process in ICT standardization, noting some possible and feasible improvements of SDOs’ governance and processes and introducing further challenges associated with procedural guarantees in global SDOs.

Outline of the Book

This book is divided into four parts. Part I presents the ecosystem of ICT standardization. Chapter 1 discusses ICT standardization as a normative regime and explains how voluntary standards created in committee processes of different types of SDOs may acquire binding force. Chapter 2 offers a normative account of legitimacy of ICT standardization as a form of private transnational (i.e., increasingly international, but not States-centered) regulation and introduces an inexhaustive list of procedural meta-principles through which private regulatory regimes can be legitimized.

Part II proceeds with examining the regulatory frameworks that apply to global ICT SDOs and provides detailed research into the applicable legislation, policy, and case law, focusing on the procedural instruments that these regulatory frameworks offer to SDOs to legitimize their standards and to limit or escape liability. Chapter 3 discusses the relevant agreements of the World Trade Organization (WTO) (Technical Barriers to Trade, TBT); Chapters 4 and 5, respectively, discuss the relevant domains of the EU and US regional regulatory frameworks. While noting that there are certain differences and similarities in how the law treats voluntary standards and SDOs producing them, Chapter 6 offers a holistic analysis of the procedural principles introduced in the examined frameworks, to which it collectively refers to as “due process” principles and further explores the relevance and suitability of these principles to ICT SDOs, identifying the shortcomings of each of the legal mechanism with regard to the current challenges in ICT standardization.

Part III explores the procedural and substantive guarantees offered in leading SDOs. Chapters 7 and 8 provide a detailed systematic overview of the operational frameworks of seven SDOs, each having different institutional background and producing different types of ICT standards. In particular, this analysis differentiates between SDOs’ administrative rules (“policies” and “policy-making”) and technical (“standards development)” processes. Chapter 9 then analyzes the extent to which the legal instruments discussed in Part II apply to the SDOs at issue and evaluates SDOs’ rules and procedures against the due process requirements of these legal instruments.

Building on the descriptive findings of the previous chapters, Part IV contributes with practical considerations from qualitative empirical research. The findings of this part increase our understanding of current practices in ICT standardization and offer food for thought for both public and private regulators with respect to the design and scrutiny of SDOs’ processes. Upon discussing the methodology for the empirical study in the introduction to Part IV, Chapter 10 offers three case studies on recent disagreements in SDOs bodies and committees where procedural guarantees were at stake and that were resolved either by the SDOs’ internal dispute resolution bodies or by the courts. Chapter 11 then reveals experiences of individuals that are actively involved in ICT standardization, mostly experts from leading private companies, with the processes of different SDOs, discussing such aspects as procedural guarantees in technical committees, dispute resolution by SDOs’ governance bodies and the differences between drafting SDOs’ internal rules and drafting standards. This chapter seeks to understand, from a practical viewpoint, how SDOs’ compliance with due process requirements relates to the effectiveness of their standards. Chapter 12 brings together theoretical and practical considerations and offers a new perspective on legitimacy of ICT standardization as a private regulatory regime. It further suggests what should be the role of different stakeholders (e.g., SDOs, governments, and courts) in strengthening the different types of legitimacy in ICT standardization, underscoring the importance of feedback mechanisms for SDOs’ decision-making that is currently insufficient or absent from the SDOs’ operational frameworks.

Contributions

Without any pretense of exhaustiveness, this book explores the ecosystem and regulatory landscape of ICT standardization. Its title, The Law and Practice of Global ICT Standardization, was chosen to demonstrate the comprehensiveness of the study as well as its connection to practice, rather than as an attempt to make a definite contribution to the extensive field of law and standardization. This book also does not aim to make any explicit statements regarding SDOs’ compliance with the applicable laws and regulatory requirements. Rather, it aspires to become a reference point by providing a comprehensive analysis of legal rules, governance, and technical processes in global ICT standardization in a manner that is explanatory as well as explorative, especially focusing on procedural guarantees in SDOs and their practical application.

The contribution of this study is threefold. Firstly, it offers a holistic analysis of legal rules and procedural principles that different regulatory frameworks have in place for industry-driven SDOs, building on the existing literature in the field as well as examining updated legal documents. Secondly, it provides a systematic overview of SDOs’ governance and standards development procedures, introducing different implementation mechanisms for procedural safeguards. Lastly, it gives due account to practical considerations from qualitative empirical evidence, attempting to bring theoretical legal research a step closer to reality, and, by this means, contributing to the understanding of the ecology of ICT standardization.

The evolution of ICT standardization as a form of governance, together with the great diversity of SDOs’ institutional landscape, poses the question whether due process principles, as currently formulated by the regulatory frameworks, are still fit for purpose and offer meaningful tools for their implementation and enforcement. Arguably, these principles can be bent to suit a particular industry and tailored to a particular organizational structure. Arguably, the excessive involvement of governmental actors in the design of SDOs’ rules, while certainly facilitating due process, is undesirable and may distort SDOs’ technical decision-making. In this regard, SDOs’ are faced with a considerable challenge to follow due process requirements while being sufficiently flexible to adapt to market developments and to ever-evolving industry needs.