The future of Internet governance.

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 2:45 p.m., on Thursday, March 29, by its moderator, Tim Wu of Columbia University School of Law, who introduced the panelists: Esther Dyson of the Internet Corporation for Assigned Names and Numbers (ICANN); Michael Froomkin of the University of Miami School of Law; David A. Gross of the U.S. Department of State; and Miriam Sapiro of Summit Strategies International. *

TIM WU: ([dagger])

The issues surrounding Internet naming and Internet governance have been controversial since the mid-1990s. But public attention was drawn to Internet governance in the early 2000s when Europe and other countries declared themselves unhappy with how Internet governance was working, how the domain names were being assigned, and other issues. David, can you summarize what was happening in the early 2000s that created controversy in this area?

DAVID GROSS: ([double dagger])

In 1998 there was a proposal for a UN world summit on the information society. The concept was how to use new information and communications technology to help the world, particularly to support the developing world. And as you can well imagine in the late 1990s, there was a lot of enthusiasm for this idea. Although there was a little misgiving, everyone by and large was on board. The U.S. government had some misgivings about it, as we generally do with most UN summits, but we also came on board. It was such a popular idea that they decided to hold it not in one place at one time but, rather, in two places at two times, but they could not decide where to do it. So it was held in Geneva in 2003 and then in Tunisia (a place that is always interesting when you are talking about Internet-related issues) in 2005. For those of you who are not familiar with a UN summit, all the fun and games happen before the summit, not at the summit. Summits are sort of parties, and all of the negotiations happen ahead of time in what are called preparatory meetings, where the world gathers, of at least diplomats from the world gather. One thing that was done differently, something that was unique, was that the private sector, non-governmental organizations (NGOs), and private companies were invited in some fashion to participate. This was done because the Internet, of course, was being driven forward by the private sector. But governments and, in particular, many diplomats are uncomfortable with this, and so the first big fight was on the summit's rules of the game.

That is important because Internet governance and the ultimate resolution of these things was driven by those who were able to participate and how they were able to participate as much as by the substance. And many countries as you can imagine (I will not name names, but you know who they are), did not want the private sector involved. They did not want organizations like the Internet Corporation for Assigned Names and Numbers (ICANN), the Internet Society, or commercial companies to be involved. They just wanted it to be a traditional summit amongst foreign ministry types who are usually the last to get the memo about what the subject's technical aspects are really about. Of course, what happens at that point is that everyone falls back on what summits generally are all about--rights and discussions about rights. As a relative newcomer to this situation, I was very interested to see that when the discussion is about rights, those who scream loudest for rights are generally those who give the least amount of rights to their own people. I found it all a somewhat surreal experience initially.

To really answer the question more precisely, there were certain parts of the developing world--particularly those who do not allow their people to speak freely on the Internet and try to take the Internet away from the private sector and also arguably try to take away the role that the U.S. government plays--that wanted to empower an international organization to undertake this role, either by changing ICANN itself into an international organization or by subsuming the role that ICANN plays into an existing international organization such as the International Telecommunication Union or the United Nations or some other organization. In our view, the purpose of these efforts was to create a veto, an effective veto, by those governments who are not very happy with the rapid and innovative changes on the Internet, both economically and also with regard to speech, by threatening a veto. Let us just use one country, China. By threatening to veto, China could then try to restrict the allocation of domain names, the new top-level domain names, or some of the underlying architecture of the Internet.

Not surprisingly, we were very upset by that concept. We won the first round in 2003, largely by pointing out that nobody had agreed on the definition for the term "Internet governance." So, when in doubt, send it to a committee to define it, so that is what we did. In 2003 heads of states from most of the world's nations gathered together and decided to send this issue to a committee. And so we sent the issue to the committee, which then went off to form a group of experts to be appointed by the UN. They came back in late 2005, and came up with something, which I thought was fairly silly on a number of points although there were some very excellent points regarding other areas. Of course, it was completely ignored by the diplomats who then negotiated all over again. They were very tense negotiations--lots of late nights in many of these "prep-coms." Ultimately, the result was extraordinarily positive, which was the decision not to change what we had already established. Instead, we would create a forum for discussion of Internet-related issues and Internet governance, where parties could go and have discussions about these things, but that would be in a non-binding fashion.

I will quickly add one last thing that is often overlooked, in this discussion. I think the good news is that with all of the focus on Internet governance, the United States, together with very close allies, was able to get paragraph 4 into the Tunis Declaration. This enshrines the freedom of expression over the Internet. In 2003, when we had tried to address this head on, we ended up restating paragraphs 19 and 20 of the Universal Declaration of Human Rights. Bottom line, no change after the world summit. A lot of work, no change.

PROFESSOR WU:

Esther, is there anything that you would like to add to that?

ESTHER DYSON **

The saving grace of ICANN, as far as I am concerned, is that it is widely considered to be illegitimate, and therefore it has very little power. If it were considered legitimate, and could actually do a lot with impunity, it would be a very dangerous organization. But it is pretty hamstrung and nothing much actually happens, which is good.

Nonetheless, I was founding chairman of this organization, and I think we made two huge mistakes. The first was not to be open. This was actually before I showed up, even in how the thing was created and how the initial board was selected. But then we held our board meetings in private for the first year or two, which completely destroyed any affection we might have had among the people who were supposed to be the people on behalf of whom we were developing policies. That created a very unhappy relationship between ICANN itself and the Internet community. It was exacerbated by the fact that we were trying to privatize Network Solutions, which owned the "dot com," "dot net," and "dot org" registries. They behaved extremely badly, which made things worse because the United States wanted to pretend that we were not created by the United States and that it had not given us funding. We had very little in the way of the budget so we had to "tax the Internet."

The second big thing we did wrong was to impose way too strict and precisely defined contracts. Even now, the terms on which registries and registrars can compete are extremely limited; they have to offer pretty much the same services for the same prices, with restrictions on almost anything creative--including stronger security, privacy services, and the like. The only way they can compete is on the basis of sleazy marketing practices.

But I think that there are many more interesting things to talk about concerning Internet governance than ICANN. For example, what can...

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