Luncheon Keynote Speech - Hans Klein

• Publication year: 2004

The Internet: Place, Property, or Thing—All or None of the Above?

October 30, 2003

Luncheon Keynote Speechby Hans Klein*

MR. WALKER: Good afternoon. I am glad you are here for lunch at this wonderful Symposium. I have just had an interesting lunchtime chat with one of our speakers from this morning, Jennifer Granick, and our speaker for this lunch, Hans Klein. He, among other things, is one of the founding members of ICANN, which is the Internet Corporation for Assigned Names and Numbers. Mr. Klein is going to speak about that some this afternoon, and we are glad to have him.

Mr. Klein is an associate professor in the School of Public Policy at the Georgia Institute of Technology. He graduated from Princeton in 1983 and then did software work mostly in Europe. Then he went back to school and got a Master's Degree and a Ph.D. at M.I.T. in Cambridge, Massachusetts. For the last seven years, Mr. Klein has been teaching at Georgia Tech. We are delighted that he is here today. He has fascinating things to talk about, and thank you, Hans, for joining us.

MR. KLEIN: Thank you very much. I would have to say that if someone from ICANN heard me described as one of the founding members of ICANN, they would not quite agree. I have been working more on the public interest side of ICANN of global governance. So although I have been very involved with ICANN, the Internet Corporation for Assigned Names and Numbers, and although I have been participating and working with ICANN from the beginning, I have not always been such a welcomed member at their parties. Of course, I think this is because there are a lot of issues of legitimacy and fair representation of different stakeholders in the ICANN processes, and sometimes the people who really were the founding members of ICANN did not give those issues the same priority that people like I did. Today my talk is titled "The Internet and Global Public Policy."

My speech may be a little bit different from some of the approaches you have heard earlier today. I am not a lawyer. I will talk more with a political science approach, and my focus is more on global issues with a focus on institutions and the creation of institutions within which public policy is made at the global level.

The Internet is an amazing technological system, and we are getting more and more into the interesting law that surrounds it. But the Internet is also extremely interesting from the institutional perspective. The Internet can be seen as a sector where we have seen some institutional pioneering. This sector, the Internet, is a home to a very interesting institutional experiment in global regulation, and that experiment is ICANN. That is really what I am going to talk about today, and that is the focus of what is happening for global public policy on the Internet.

I will tell you about it in just somewhat of a brief overview. ICANN is a private entity that performs global governance or global policy making. It is based on contract law, and I will say a little bit about that later, but not too much, because I am a little worried that my audience might know more about contract law than I know about contract law. There are two audiences you want to be very careful about giving talks to: engineers and lawyers. You have to be careful when speaking to engineers because they will always say, "You gave this long talk, but when you mentioned the address of the following Internet server, you got that wrong, and we're going to point it out very publicly that you got that wrong." Maybe the legal community is similarly precise in some of its accuracy. So, I will mention a bit on contract law, but hopefully not too much. Then I will finish with some questions about the legitimacy of this institution. Obviously that is a core issue in political science and in novel forms of policy making.

I will start with the big picture on governance. The dilemma of global governance begins before we even talk about the Internet. A lot is going on in the area of globalization and in the area of governance. To conceptualize or to think about globalization, we start with systems—functional systems—and by that I mean things like the system of trade between nations. The system of the environment, the atmospheric environment, the environmental system of which we all play a part, whether in China, Argentina, or the United States; and likewise, global systems of communication that span the world and connect people in different parts of the world.

These systems have global functionality. I put up a Web page in Atlanta, and somebody in Beijing accesses it. The systems interact, and we can communicate with each other even though we are crossing the globe and even though we are crossing many legal and political systems.

Such global systems need governance. At a minimum, they need coordination. If the system has a technological basis, it needs some kind of management of the technological core. At other times maybe the systems do not need governance, but they ought to have governance because of the perception that the global environment needs governance to keep it from being destroyed through excessive pollution and so on. So when there are global systems—global functionality—there arises a need for global governance. What we are seeing more and more in the world as more of our systems go global is that the global systems need some kind of overarching coordinator. Then the question arises of who is going to be the global coordinator for the different systems.

One classical, traditional answer has been the nation state. National governments provide coordination and government services and make policies and regulations to manage these systems. But nation states are limited in their geographical scope, and once you go global you have the question of who the regulator at the global level is going to be. This debate occurs over and over and over. For example, that is the debate over the WTO [World Trade Organization], the fight in Seattle, the questions on the Kioto protocol on the environment, and the Internet. The debate concerning regulation of the Internet is what I am going to be talking about today.

Who governs? Well, let us look at some of the options that are out there, both historical and those that are emerging. We are seeing the emergence of global governance institutions. The sort of granddaddy of global governance institutions goes back more than fifty years to the United Nations ("U.N."). Some U.N. agencies have been doing this for a while. The International Telecommunications Union ("ITU") has actually been coordinating telephone systems before there was a U.N. The ITU predates the U.N. and it manages coordination of the different numbering schemes for different countries. ITU performs some global governance issues. Also, another U.N. agency, the World International Property Organization ("WIPO"), governs some intellectual property issues. So, the U.N. is one global or supra-national institution whose agencies have been performing some of these global governance tasks.

There are other institutions that are newer, and we are seeing new models emerge. More recently, the Multi-Lateral Treaty has been used quite significantly in the World Trade Organization ("WTO"). The WTO has many links with the U.N., particularly the WIPO, but it is not a U.N. agency. It is a different kind of beast. Even more recently, in the case of the Internet, we are seeing an experiment in a private corporation. Whereas the WTO is based on national governments making treaties, we are now seeing a corporate entity, ostensibly independent of governments, operating somewhat autonomously and performing these global governance and coordination functions. This corporate entity is ICANN. It is a path-breaking experiment in institutional design and a new way of managing things at the global level.

So, let us look now at ICANN in more detail. There was a lot of controversy when ICANN was created, and maybe there was a sense of humor among the people who finally launched it over the opposition. When they triumphed over the opposition and...