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Internet Governance: Questions and Biases

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It is widely theorized that the Internet’s creation, inception, and implementation have increased global interaction, impacting the daily lives of many global citizens. The Internet provides a myriad of online spaces of interaction that promise to contribute to an extension of the public sphere of rational-critical deliberation. The Internet has allowed humanity to function as one body of information transfer, each person connected via a computer terminal and a series of communication lines. Yet, in this era of globalization, there exists an amount of chaos and confusion, much of which is spurred by the impact of the Internet on humanity and governance and in turn, the impact of humanity and governance on the Internet.

Governance refers to the emergence and recognition of principles, norms, rules, and procedures that both provide standards of acceptable public behavior, and that are followed sufficiently to produce behavioral regularities. Governance, thus defined, need not be conducted by governments — international organizations, private firms, and associations of firms and ability to engage within it.

Internet governance discussions address national policies while the Internet itself obviously transcends political demarcation. The Internet’s expansiveness and socio-economic importance has created challenging global policy issues. A co-ordinated attack on key infrastructure components or a major security breach could now have significant economic and social repercussions. Even mundane responsibilities like IP number system and DNS administration or technical standards setting have been controversial, including questions about their global inclusiveness. Globally, the digital divide not only captures access impurity but also nationally imposed content restrictions for those already connected.

The Internet is not defined by the geographic boundaries that govern nations and laws of the non-virtual world. Without a clear jurisdictional framework for the Internet, scholars, businessmen, and laypersons have been left to decipher in a piecemeal fashion what set of laws and norms, if any, shall govern this forum. The United Nations recognizes 189 sovereign countries throughout the world, each with its own system of governance and legal framework. This leaves a vexing international question of who should exercise power over Internet activity and what standards shall be upheld.

Internet Governance

The Internet Corporation for Assigned Names and Numbers (ICANN) is a private United States of America not-for-profit corporation that has taken responsibility for allocating Domain Name System (DNS) and IP addresses. ICANN coordinates the DNS system: it delegates the management of top level domains and ensures the global database is coherent. The Internet root is a file, whose maintenance is delegated by the Department of Commerce of the American government and ICANN to a technical service provider. This file is then replicated on the other root servers. The Internet Corporation for Assigned Names and Numbers (ICANN) is a technical co-ordination body for the Internet, which are specifically co-ordinating Internet domain names, IP address numbers, and Protocol parameter and port numbers. In addition, ICANN co-ordinates the stable operation of the Internet’s root server system.

ICANN’s mission is to coordinate technical and policy functions of the DNS in order to promote a safe, stable and commercially viable domain name system, promote competition, and achieve broad representation of global Internet communities. These co-ordinated functions stand in stark contrast to the ad hoc basis on which U.S. government contractors and grantees, and a wide network of volunteers handled many of these key issues. While this informal structure represented the spirit and culture of the research community in which the Internet was developed, the growing international and commercial importance of the Internet necessitated the creation of a technical management and policy development body such as ICANN.

The Clinton administration’s policy called for ‘private sector leadership’ and noted ‘governments should establish a predictable and simple legal environment based on a decentralized, contractual model of law rather than one based on top-down regulation’ (Clinton and Gore, July 1, 1997). The non-state governing authority would enter into ‘private contracts’ with industry stakeholders that would be global in scope, rather than subjecting themselves to a welter of different, potentially conflicting rules based on territorial jurisdictions. Regarding domain names in particular, the US proposed in mid-1997 that ‘It may be possible to create a contractually based self-regulatory regime that deals with potential conflicts between domain name usage and trademark laws on a global basis without the need to litigate.’

In 2003 and 2005, the UN held The World Summit on the Information Society (WSIS). During Phase 1 of WSIS, two substantive outcomes emerged as part of the governments’ agreement on a Declaration and Plan of Action. One point of action was a “Task Force on Financial Mechanisms” an effort to promote financing of communications infrastructures in undeveloped nations; the other was a Working Group on Internet Governance (WGIG), a multi-stakeholder group that would issue a report defining Internet governance, identifying the relevant public policy issues, and discussing the roles and responsibilities of state and non-state actors in governance. The critics of ICANN cite that it is undemocratic in its representation of worldwide Internet users. Furthermore, many comment that ICANN creates barriers to third world countries, such as Africa and Cuba, by the solely controlling the allocation of DNS.

ICANN became an official regulatory board in 1998. During that year, and the years following, scholars and writers contended and defended the US-based regulation. It is widely known that the Internet itself began as a college project, was effectively borrowed by the US Defense Department, and from there, much like the computer, filtered into the domestic market and became one of the largest technological advances of this century. The above history of ICANN showed how the US government established regulatory procedures for the Internet. There are two main points to this. First, the regulatory body is only responsible for the address space allocation. It is not a body that governs the ‘who, what and how’ of the Internet or Internet users, but only the Domain Name System (DNS). Secondly, the Internet is a technology developed by citizens and governing bodies of the United States.

ICANN: Self-Regulation?

Perhaps with some sort of insight, D.G Post (p.2 1999) first raised the questions about Internet governance as a social concern: Power corrupts, absolute power corrupts absolutely— on the Internet as elsewhere. Questions about constraining any form of absolute power are constitutional questions of the highest order, and “governance” means nothing more (and nothing less) than the search for mechanisms to ensure that absolute power is not exercised in an unjust or oppressive manner. How can we be assured that ICANN will be able to resist pressures to stray beyond this limited oppressive manner? How can we be assured that ICANN will be able to resist pressures to stray beyond this limited “technical” mandate?

Milton L. Mueller, an associate professor at the Syracuse University School of Information Studies, is the author of many scholarly works on telecommunications policy, is probably one of the first and loudest voices that contends the ICANN regulation of the Internet. First publishing his discontent only a year after ICANN’s implementation, Mueller remains a strong and convincing voice. Mueller’s article ICANN and Internet Governance — Sorting through the Debris of ‘Self-regulation’ was first published in 1999, and responds to the concerns Post raised. Mueller’s (1999) article steps through the sequence of events, starting as early as 1960 and following through to the Clinton administration of the199o’s. Mueller’s (1999) examination of various white-papers and green-papers released by the industry and US government comes to the conclusion that: “private sector leadership did not mean turning over governance to the internet industry and its users to work out for themselves,” instead, ICANN is both a private business and US political move with an agenda: Leaving control of name and address administration in the hands of the hierarchy established by the Internet Society and a small band of its corporate allies; and, implementing a private deal made between a few government officials in the US Commerce Department and the EC (European Commission). The real object of ‘self-regulation’ seems to have been avoidance of any formal, public process (Mueller p. 517 1999).

ICANN’s (pp 6 2006) own statement to be “Consistent with the principle of maximum self-regulation in the high-tech economy, ICANN is perhaps the foremost example of collaboration by the various constituents of the Internet community.” Self-regulation was a point of concern for both Post and Mueller, and even more than a decade later, it remains that ICANN is a government-initiated concept with a private business agenda. On that note, the reach and influence of the Internet is beyond the US government and the reach of big business. ICANN values itself as a technology based regulatory body. It does not propose to create or destroy technology, but assign a direction of information transfer within the Internet community.

ICANN: Technological or Political?

At the crest of the new millennium, Jonathan Weinberg, Professor of Law at Wayne State University, examined ICANN through is previous experience as a legal-scholar-in-residence at the Federal Communications Commission from 1997-1998 and by examining standard judicial procedures. He concludes that ICANN can be treated in two ways, either as a political representative entity or as a technically co-ordinating body.(Wienberg 2000)

Weinberg’s (2000) distinction is that if, in fact, ICANN is a politically representative body, and it should be equally represented by the various political entities that are involved in the Internet, specifically a representative from different countries. The other distinctions Weinberg made is that if ICANN is not a political organization, but instead a technical body, then it has no responsibility towards any political or social representation, and exists solely for the purpose of coordination of technology.

Searcher (ed. Barbara Quint 2000) magazine, a product of Information Today Inc., explains that ICANN is a non-profit organization that lacks any real ability to “mandate organization that lacks any real ability to “mandate regulations and to apply sanctions,” but must rely on “national and international jurisdictions for enforcement” (ed. Quint p. 50 2000). Furthermore, Searcher explains that “ICANN neither represents the Internet world from a national perspective nor from a stakeholder perspective” and “ICANN also fails to represent all the various stakeholders with an interest in Internet naming” (ed. Quint p. 50 2000). Lastly, the magazine contends that, as opposed to Wienberg’s focused descriptions, “These issues may not matter when regulating solely technical issues, but they become profoundly important when trying to mitigate between conflicting political, economic, and social issues” (ed. Quint p. 50 2000). The comments in Searcher seem to point to the concept that regardless of ICANN’s functionality in the technical or political domain, it still has a responsibility to the social, political and technological aspects of the Internet, if only for its position as a regulatory board.

The Concept of Internet Regulation

By 2001, the concept of Internet regulation as a responsibility that goes beyond business and political agendas to focus on the social and humanitarian concern was growing. Previous literature seemingly focuses on the aspects of governance, democracy and technology, but ignored the social factors. Hans Klein’s 2001-research paper, much in the tradition seen by previous research, focused on the review of white papers, organizational structures, and other literature as a case study. Klein focuses on ICANN as a democratic movement, a collective volunteerism without a top-down management procedure that incorporates an open communication policy. And while Klein seemingly ignores the structural focus of previous research, he does make interesting points towards ICANN as more than a technology regulator, stating towards ICANN as more than a technology regulator, stating that: “Overall, many small sparks of initiative by numerous individuals linked in a collective network produced a recognizable social movement capable of influencing policy process” (Klein p. 409 2001).

Now, as the years progress and the Internet is understood as more than a focus for corporate and government agendas, the social concept of Internet governance as a global initiative gains force. Not only is the concept of the Internet changing, but also the amount of information available from earlier years up to 2001-2002 is increasing. The world, media, and educational facilities are looking at and research the effects of Internet regulation. The world, media, and educational facilities are looking at and research the effects of Internet regulation.

By 2002, ICANN was under tremendous pressure to alter its governance to incorporate more global and social contexts Zoe Baird (p. 18 2002) noted that ICANN created barriers of entry for developing countries and non-profit organizations because they lack financial and technological resources to because they lack financial and technological resources to take part in the Internet. This is primarily due to the complications in “decision-making arrangements” that create a “multiplicity of institutions” and further barriers in complexity of ICANN regulations create the “difficulty of keeping pace with industry and consumer economic priorities, by a dearth of effective models for inclusive policymaking, and by the lack of financial resources for experts and travel” (Baird p. 18 2002).

Peter Guerrero, Director of Physical Infrastructure Issues made a 2002 statement to the US Senate Subcommittee on Science, Technology and Space. He concluded that “the effort to privatize the domain name system has reached a critical juncture, as evidenced by slow progress on key tasks and ICANN’s current initiative to re-evaluate its mission and consider options for reforming its structure and operations” (Guerrero p. 25, 2002). These accusations prompted ICANN to re-structure its governance with aid from government bodies such as the US Senate and the European Commission. The resulting changes were dubbed ICANN 2.0, and the new structure incorporated the following: A board of directors with legal responsibility for ICANN policy and decisions; Three supporting organizations representative of concerned parties such as Generic Names Supporting concerned parties such as Generic Names Supporting Organization (GNSO), the Country Names Supporting Organization (CNSO) and the Address Supporting Organization (ASO); Five advisory committees, the Governmental Advisory Committee (GAC), the At-Large Advisory Committee (ALAC), the Security and Stability Advisory Committee (SSAC), the Root Server System Advisory Committee (RSSAC) and the Technical Liaison Group (TLG).

The influence of the GAC organization on ICANN is also criticized by Mueller (2002), who explains that ICANN’s Board of directors is weightily influenced by GAC over any of the other supporting organizations. Mueller questions the ethics of ICANN, and stating that the Board is unsuited to will gradually become an international regime under the control of certain governments. Mueller states that “If ICANN becomes a method by which governments can make policy outside of any formal treaty framework then it is possible that it represents the worst of both worlds’ (Mueller p. 10 2002). His following papers further explain that there are obvious tensions between ICANN’s privatization commitment and government interventions, especially in regards to public policy. ICANN, in Mueller’s (2002) perspective, has no procedural accountability to any public policy, and can act without the consent of a broad community that would generally characterize a private corporation. As a policy-making and regulatory authority, it requires representative structures and defined transparent procedures. ICANN is, therefore, operating under the pretense of a private, non-profit organization while maintaining an amount of dependency in an agreement with the US Department of Commerce, and is still subject to oversight by the Commerce Department (Mueller, 2002 at p. 8).

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