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.”