INTERNATIONAL

Who governs the Net?

Internet governance can function only globally and only is all those concerned can participate. ICANN is a start in the right direction

By Marcel Machill

People registering addresses, so-called domain names, in the World Wide Web (www), are looking if possible for snappy, easy to remember names. But many Internet users searching for suitable domain names suffer unexpected setbacks: 98% of the words in a regular sized English dictionary have already been reserved. An attempt to create an economically viable identity on the Web might well be frustrated even before it has begun.

WHO DETERMINES how domain names are distributed anyway? An Internet regulation authority? Perhaps a government? In most case the Internet Corporation for Assigned Name and Numbers (ICANN) has a hand in the matter. One thing is certain: the Internet is by no means as anarchic and uncontrollable as it is often made out to be. In 1993 the US Department of commerce undergoing constant changes and was also threatening to become increasingly chaotic.

IN THE FIVE YEARS previous to that date, thanks to its exponential growth rate, the Internet had not only become a household word but had also created a whole range of conflicts, involving such issues as who determines the technical infrastructure of the Internet and the way it functions, who has the right to assign domain names, and who should decide the growing number of legal disputes between brand name owners in the real world and domain name owners in the virtual world. As the Internet has grown into a mass medium, the need for regulation has increased.

Historically, as the Internet continued to develop, the American government-that played such a decisive role in the creation of the Internet in the fifties-assumed the role of a de facto Internet government.

The USA: a de facto global Internet government?

But as the Internet evolved from a government financed scientific experiment to an international market placed and global information forum, other groups- for instance other sovereign states, private businesses and individual Internet users throughout the world – began to express an interest in the network's stability and in the process of assigning domain names. At the same time the role of the American government as the real power behind the Internet was increasingly resisted by other governments around the world. In the autumn of 1998 at the latest it was clear from the large number of disputes over brand name copyrights and assigning of domain names that changes would have to tame place in the way the Internet was being managed. Clearly it was unacceptable for one government to regulate the Internet on its own, for the Internet and its constituent parts can function only globally.

BUT THE INTERNET'S dynamics seem to preclude its being regulated by conventional supranational organizations such as the United Nations. The lengthy process of intergovernmental negotiation, which is typical of the latter, makes it an unsuitable body for regulating the Internet. But if neither national governments nor established multinational organizations can do the job, the question still remains as to who should govern, who should regulate the Internet.

Because of its technical infrastructure (its architecture) the Internet often ignores traditional constants of social interaction-such as space and time – making it a catalyst for social, cultural, and economic revolution. This new system of co-ordinates has given rise to new regulatory mechanisms.

Driven by the dramatic success of the Web, the community of Internet users-initially nearly all based in the USA – was forced to regulate the development of this technology itself. The need to standardize and regulate the Internet in the absence of already existing regulatory bodies forced this community to set up its won informal, flexible agencies. Thus the technical standards that pertain in the Internet have been developed "from the bottom up" by self-regulatory agencies.

For example the Internet Engineering Task Force (IETF), founded in 1986, is responsible for all the Internet's basic technology and has, for instance, developed standards for transfer protocols-the famous Internet Protocols of IP's.. The standards are determined by the World Wide Web Consortium (W3C). The consortium's is the broad technical knowledge base of its members, who currently number more than 380 and who are active in industry and research. Every member organization has one seat and one vote on the W3C's Advisory Committee.

BODIES LIKE THE IETF and the W3C have no sovereign authority. They were created by the members of the Internet community in response to problems that have arisen – mostly problems of a technical nature. But a high level of technical competence is an essential prerequisite for participating in these bodies. The biggest technical problems that the growth of the Internet brought with it in the eighties could be solved only by pooling technical knowledge. We should never forget that without the technical achievements of the IETF and its members the Internet would never been the success that it has become.

BUT A RESULT of the markedly technical orientation of regulatory competence, it is difficult for Internet users who have no technical background to participate in this self-regulatory mechanism. The oft-cited potential of the Internet for creating more democracy is in danger of being stifled by technocratic structures. For this reason, Internet self-regulation cannot be a matter for the technicians alone but must include other groups of Internet users, such as economic, political and social experts. The more the Internet becomes a mass medium, the broader this co-regulatory base must be. The more they penetrate social structures, the more their technical potential must be used to serve social needs, such as protecting society from network crime.

"Netiquette" as an instrument of regulation

One well-known self-regulation mechanism on the Net is netiquette, which functions without the active intervention of politicians or the authority of a central body, to regulate communication and interaction on the Internet. Netiquette is a codex of unwritten ethical and moral norms, the flouting of which leads to public criticism and collective ostracism of the offender by other network users. Although netiquette is simply a collection of informal mechanisms, in practice it has been sanctioned as an Internet norm that has the force of law. Another completely new form of transparent and informal regulation on the Internet is the Request For Comments (RFC) system: solutions to technical problems are discussed via mailing lists according to established RFC procedures until a "rough consensus" as to the technically best solution has been reached.

FRC'S SUBSEQUENTLY become "legally binding" simply by being published in numbered sequence, creating what might be called an Internet constitution-a digital loose-leaf folder of agreed-upon norms. In establishing new regulative procedures, mistakes are made and setbacks must be expected. But what is important is the willingness of all those concerned to work within co-regulative structures that correspond to the structure of the Net itself and that are just as dynamic and flexible-and sometimes even as experimental-as the Internet.

BACK TO ICANN: Under President Clinton, the American government commissioned the National Telecommunication and Information Administration (NTIA), which is under the Department of Commerce, with the privatization of the Domain Name System (DNS). The NTIA in its turn commissioned ICANN, a new non-profit organization under California law, with the daily running of the DNS. In addition ICANN was given the task of arbitrating in disputes over brand names.

AS MICHAEL LEIBERANDT of the Federal Ministry of Economics and Technology and the German government's representative on the ICANN government committee recalls: "The pressure was enormous, especially from the business sector. In our view we could not just wait until the entire board of directors was endowed with greater degree of democratic legitimacy".

The challenge facing ICANN consisted not only in exercising a narrowly defined technical mandate but also in solving a wide range of problems that had been plaguing the Internet community for years-not to mention fulfilling the expectations of Internet users, whose numbers had climbed to several hundred million. In order to allow Internet users to participate in ICANN decision-making processes, an "at-large" membership status was created for private individuals, entitling them to elect five members of the board of directors. The first global online election took place in October 2000. In theory all Internet users were entitled to vote: anybody with an email address and "real" postal address could register as a member of ICANN and request an electronic "ballot paper." In the final analysis only some 34,000 "netizens" participated in the election-the election process clearly needs to be improved. "Who is the real Internet public?" asks former ICANN chairwoman Esther Dyson. "How can we determine that those elected really represent their constituency?"

Productive pluralism: The ICANN experiment is the first attempt to date to deal with an elementary question of Internet regulation using a supranational co-regulative institution created specifically for this purpose. The goal of the ICANN experiment was to ensure legitimization through the broad participation of Internet users, interest groups and government institutions in the decision – making process. The fact that administrating domain names is not the most acute Internet problem that has to be solved is not the most important point at issue here.

WHAT IS IMPORTANT is the way in which regulatory and co-ordinatory task on the Internet are institutionally anchored, and haw many Internet-related issues – such as data protection, copyright issues, and freedom of expression – might be solved using similar structures. There are different perceptions as to how far ICANN has proved a successful example of supranational and participative co-regulation.

Jonathan Zittrain, ICANN expert and law professor at Harvard University, sums up the dilemma: "The ICANN founders had to mediate between two parties. One of these believed wwe were about to give away a US-owned resource-a kind of virtual Panama Canal. The other, consisting of mostly non-Americans, believed that the USA wanted to take over the Internet." German political scientist Claus Leggewie goes so far as to declare the ICANN experiment a "failure" and calls for the abolition of the at-large members on the ICANN board.

REGULATION MECHANISMS like ICANN show that global Internet co-regulation is indeed possible At the same time, the process of legitimizing ICANN has nevertheless revealed significant weaknesses. If one is to transfer the ICANN principle to other institutions, the following basic constructional elements must be guaranteed: a clear and unambiguous definition of the institution's duties; transparent work processes; the inclusion and representation of all those affected in the institution; the availability of an adequate platform for public debate; and an obligation to render public account.

JUST AS THE ICANN experiment has at least prompted discussion on one single relevant theme, there must exist a public forum for discussing other similar themes, as well as basic issues of Internet regulation – a forum in which constitutional questions relating to this global communication medium can be discussed. If one were to try and set up these individual regulatory institutions separate from each other, one would be ignoring the interdependency of the problems they deal with.

AS IS CLEAR from these different examples, the entire system of Internet regulation might be improved by allowing free competition between regulative structures. The Internet is a thoroughly decentralized system- applying the decentralist principle to regulation of individual problem areas means creating productive pluralism of regulative structures, such as has hitherto scarcely been possible at the national level.

Dr. Marcel Machill, MPA (Harvard), is a media expert and project director in the Bertelsmann Foundation. His article is based on the Bartelsmann "Democratic Internet" project.

Text courtesy: Deutschland, E4 N 3/2001 June/July, Embassy of Germany in Kathmandu.