Internet Governance: When Domestic Public Law Is No More than Bluster
posted by Olivier Sylvain
A couple weeks ago, in a post on the latest Internet dust-up du jour, I observed that Internet governance, such as it is, continues to be going through growing pains. Activity on the Hill yesterday on HR 1580 as well as my general, inexpert interest brings me back to the topic.
Yesterday, the House Committee on Energy and Commerce agreed to language addressed to nothing less than “Internet freedom.” After some wrangling between Democrats and Republicans over language, the bill to which Committee members unanimously agreed asserts that it is the policy of the U.S. “to preserve and advance the successful multistakeholder model that governs the Internet.” As innocuous as the language seems, the words chosen represent a compromise. Democrats disapproved of an earlier version of the bill that stated the official policy of the U.S. to be the promotion of “a global Internet free from government control.” Such broadly worded language, Democrats and others worried, invited challenges to all manner of government regulation, including FCC enforcement of “open Internet” rules. The agreed-to language accommodates the interest in diluting governmental control in Internet governance, while also furthering the cooperative, consensus-building model that seems to have functioned relatively well for the past decade and a half. In the end, that the Committee members from both parties could come to some agreement is, these days, short of a miracle. It remains to be seen whether both chambers are feeling agreeable.
HR 1580 is partly a response to recent efforts by some governments, including China and Saudi Arabia, to limit the policymaking authority of ICANN, the main transnational multistakeholder organization responsible for administering the Internet’s domain name system. These critics argue that, among other things, domestic intellectual property law and national security considerations ought to play a greater role. (For what it’s worth, the U.S. Commerce Department has expressed concerns about the difficulty for trademark owners to file timely defensive applications if anyone can apply for a top level domain name.)
Today, these governments manifest their concerns only through an advisory council within ICANN. For a decade now, these countries and others have unsuccessfully sought greater official state participation in global Internet policymaking, beyond the powers they already have under international treaties and through the International Telecommunications Union (ITU), an agency of the United Nations, in the global Internet and telecommunications governance regime. Their critique today is not directed solely at the substance of the policies promulgated by ICANN, but also to that organization’s constitutional legitimacy and policymaking processes.
As with others, I am suspicious of some of these governments’ intentions, particularly as I have a hard time understanding what it is they plan on advocating at the level of global Internet policymaking, but also because these very countries in particular are notorious for cracking down on domestic Internet users and dissidents.
Yet, at the same time, I also have doubts about the purpose and relative efficacy of the House’s recent effort. HR 1580 is hot bluster, as the language itself will have very little legal effect, other than occupy space in the congressional record. Just consider the statement released by Commerce Committee Chairman Fred Upton in which he asserts that the vote was “an important step in showing our nation’s resolve and it will send an important signal to the international community.”
Similarly, I think there is something to the critique from these countries about the legitimacy of an entity whose provenance is so bound up in the U.S.’s first-in-time-to-the-Internet status. And I’m not alone in thinking so. Apparently, even officials at the Commerce Department and the Internet number registry for the North American region think that, if they are to retain control over current addressing, they must attend to the lasting questions about legitimacy.
So let’s take as given that HR 1580 is more politics than policy. It has at least two intended audiences. First, the Internet activists who have been decrying recent efforts by China and others to expand ITU’s role in Internet governance. Second, as Rep. Upton’s statement suggests, the provision is aimed at the international community generally and the members of the ITU in particular. What then? What does the “signal” mean to accomplish? My question here is born mostly from ignorance about how congressional action like this is received and acted on internationally. Is this soft power, or something else? In any event, it is the sort of thing I associate with the sharp rhetorical jabs between the West and aspiring nuclear powers like North Korea.
Surely, the battle over what role governments ought to play in Internet policymaking does not turn on such bluster. The real challenge is in coming up with a regulatory scheme that balances well-heeled concerns about ICANN’s constitutional legitimacy with substantive Internet freedom. Can ICANN ever be a legitimate forum for resolving any disputes if many countries (with huge swaths of the world’s population) are skeptical of its authority? And if Internet activists and others are wary of the U.N.’s involvement, what is the right forum? How do we know when we have found it?
Since the late 1990s, the Internet Corporation for Assigned Names and Numbers has facilitated the administration of the Internet Protocol, the assignment of addresses, and the management of the domain name system. It has done so through a system of governance that incorporates stakeholders from around the world and from all aspects of public life: academia, industry, civil society, and governments. Under its 1998 agreement with the Commerce Department, moreover, it has promised to manage the domain name system “based on the principles of stability, competition, bottom-up coordination, and representation.”
For almost as long as it has been in existence, however, observers from around the world have challenged ICANN’s legitimacy. How, many critics wonder, can any single nongovernmental organization administer something as globally pervasive as the Internet? Some of the critiques are directed at the very fact that the organization is born from a U.S. Commerce Department request for proposal, and not some international organization. Others have raised questions about the representativeness of the Board of Directors, and the lack of transparency in the Board policymaking processes.
In response to these criticisms, ICANN has implemented a series of substantive policy reforms, approving just two years ago, for example, more top-level domain names for specific countries, nongovernmental organizations, and companies, as well as the use of non-Latin characters (e.g., Arabic and Chinese). It has also sought to assure a greater role for governments and noncommercial users.
Clearly, these efforts have not been enough. We might be reaching a point of reckoning that has been over a decade in the making. And that might be a good thing.