Internet Governance and Regulation

Session Date: April 20, 2009

Topic owners: Vera, Arjun

Concrete Question of the Week

With regard to both structure and content, what issues, if any, does the Internet raise at the national and international levels that may require regulation? What alternatives are there to such regulation?

Brief Overview

How should the Internet do what it does? And what is it that the Internet does? Who should be responsible for the Internet?

These are the questions behind the idea of "Internet governance," to which the different Internet stakeholders have conflicting answers - ranging from a strict regulatory scheme, like those applied to traditional communications media (like television and cell phones), to vehement opposition to any kind of formal control structures. Part of this disagreement stems from the Internet's technical nature. which suggests two ways of thinking about Internet governance: (1) control of the mechanisms comprising the technical structure and standards, and (2) regulating the substantive use of the Internet. (Under Yochai Benkler's framework, these would be the "physical infrastructure" and "logical" layers, and the "content" layer, respectively.) The Net's origins as a US Department of Defense-funded research network, and the continued heavy influence on its maintenance and development by US actors, meanwhile, have given rise to conflicting national and international dimensions to these questions. This topic seeks to explore through select case studies already encountered in class the issues of the Internet today, to provide a clearer picture of where Internet governance is headed in the near future, and to establish why (or even whether) it matters.

Throughout this course, we have encountered many "issues at the frontier." For some of these issues, regulation may be useful (e.g. the Future of Copyright), whereas for others, not as much (e.g. the Future of News). But there is no distinct line separating the two categories.

Several theories exist on how the Internet should be governed and regulated, if at all. Below are two examples of structures that exist today to regulate the Internet, and the relative zones they seek to regulate. Are these bodies the right way to go? Do they meet the needs of today?

Session Outline

The session will be designed to view the issues that we have previously considered in this class in the context of Internet regulation. The class will be divided into two parts.

First, we will have guest speaker Milton Mueller speak to the class on Internet regulation in general, discussing how he views its structure and implementation. After Prof. Mueller speaks, we will have Prof. Zittrain respond to his comments, offering his own viewpoint on how he envisions Internet regulation. We hope to spur a dialog between the two professors, as well as engaging the class.

For the second half, we will examine topics we have already discussed during the course of the term from the perspective of Internet regulation. Using what Profs Mueller and Zittrain outline, we hope that we can address various complications with each viewpoint as it applies to each issue.

• Pre-class assignment: Each member of the class will be expected to submit questions based on Internet regulation on any of the topics already addressed in class for a topic that is not their own. They should submit at least 3 questions, on three different topics.
• Class Discussion: We will use the topics that generate the most number of questions to stimulate the conversation. We hope that the leaders of the topic will respond to the questions presented and stimulate a discussion amongst the class.
• Wrap Up: The class will conclude with a discussion of the issues from the larger perspective, discussing what the class thinks are the most pressing concerns and how they think we can address them.

Guests

• Milton Mueller of Syracuse University's Internet Governance Project.

Professor Mueller is a Professor and Director of Telecommunications Network Management Program at the Syracuse University School of Information Studies, where he teaches and does research on the political economy of communication and information. He has been involved in many ongoing Internet governance projects, including ICANN and the UN's Internet Governance Forum.

Professor Mueller's presentation to the class will be followed a short responsive presentation by Prof. Zittrain.

Readings

Required Readings

In preparation for our class discussion with Prof. Milton Mueller and Prof. Zittrain, please do the following required readings:

• Prof. Mueller's Bio
• "About" page for the Internet Governance Project
• The Politics and Issues of Internet Governance - an essay by Prof. Mueller
• Prof. Mueller's "Top Internet Governance Issues to Watch in 2009"
• Intro video from JZ's 2004 iLaw Course - watch from the 38th minute onwards.

Suggested Background and Readings

In addition, we've selected three current topics to provide some background on the types of issues that "Internet Governance" might touch on. Though not the only issues that Internet Governance applies to, they provide examples of how Internet Governance interacts with different organizations and institutions.

ICANN's top-level domain name ("TLD") expansion

Last summer, the Internet Corporation for Assigned Names and Numbers (ICANN) voted to expand the possible top-level domain names (TLDs) such that individuals, businesses, governments, and other entities can register TLDs composed of any combination of letters in any script, so long as they can show a "business plan and technical capacity" to back up their desired domain. Most domains will end up going to the highest bidder in an auction process. Despite ICANN's expansion of TLDs, the Department of Commerce has reiterated that its management of changes to the authoritative root zone file (including its contracts with VeriSign and ICANN) will remain intact.

• Should we be concerned about control of generic domains, like ".news" or ".shop," by a few wealthy individuals or groups?
• Should we worry that ICANN is the sole body setting the standards for TLDs and resolving disputes?
• Who should control the root zone file, and why?

Selected Readings (skim)

• Prof. Mueller and JZ discussing ICANN and top-level domains (TLDs) on the Internet Governance Project blog:
  • What Zittrain Doesn't Get (also read the response by JZ in the comments)
  • Response to Professor Zittrain (also read the comments by JZ and Prof. Mueller following the post).

The Internet Governance Forum

The Working Group on Internet Governance (WGIG) was set up during the first phase of the United Nations World Summit on the Information Society (WSIS) in 2003 in order "to investigate and make proposals for action, as appropriate, on the governance of the Internet by 2005." In its final report, the WGIG provided the following working definition of Internet governance:

Internet governance is the development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.

Based on the report, the UN Secretary-General established the Internet Governance Forum (IGF) in 2006 with multiple stakeholders, including governments, the private sector, and civil society. The mandate of the IGF declares that the forum's purpose is to discuss Internet governance-related public policy issues and advise stakeholders on such issues, but it does not have any real decision-making authority. The IGF held its third meeting during Dec. 3-6, 2008 in Hyderabad, India, in which panels explored topics such as expanding Internet access to the next billion people, promoting cyber-security, and global arrangements for managing critical internet resources.

• Should the IGF have direct decision-making authority? If so, what substantive areas should this authority cover, how far should it go, and should it be binding? If not, what good does the IGF really do?
• Is global governance of Internet use a good idea in any respect? If so, is the IGF the best form of this governance?

Selected Readings (skim)

• The Path Towards Centralization of Internet Governance Under the UN - Part 1 of a series of three essays recently published on the Berkman Center's Publius Project.
  • Part 2
  • Part 3
• Transcript of "The Internet of Tomorrow: Innovation and the Evolution of the Internet" - a panel discussion from the latest IGF meeting (really skim - to get an idea of how one of these discussions proceeds)

The Cybersecurity Act of 2009

On April 1st, 2009, Senators John D. Rockefeller and Olympia Snowe introduced legislation drafted (with White House input) that, among other things, creates a "cybersecurity czar" who would have the power to shut down private computer networks in the event of a cyberattack.

• Is it a good idea for the US government to have such control over the private Internet?

Selected Readings (skim)

• Prof. Mueller's description and reaction to the Act
• Prof. Zittrain's reaction to the Act

Session Recap

Prof. Mueller's Presentation

What is governance? The tendency is for it to be poorly defined. We have a vague idea that it's something to do with ICANN - but is it a small subset of bigger field perhaps? We should look at Internet Governance as how the internet is shaped and ordered, including such things as standards, organizations like ICANN, public policy and the legal framework within which it operates. We need to ask critical questions of the effect at the international level of the nation-state on policy.

For a long time, the nation-state has been the basis of law. Basis of collective identity, political organization. But the Internet is global. Internet Governance is about this disjunction. There is a system of anarchy at the global level. ICANN is interesting in that it is a truly global institution native to the Internet, and it was founded on strange delegation of authority. It and organizations like it challenge the nation-state system. But despite these fundamental differences from international organizations that preceded it, ICANN is still tethered to nation-state by its contracts and links to US government.

The global politics of Internet Governance came to a forefront in WSIS. There, people challenged special status of US, and capitalized on anti-US sentiment after Iraq war.

But who should have roles? As a result of WSIS, there was attempt to create division of labor, a division that was misguided. The result was the IGF, a bargain between US and rest of world. The IGF was founded on the belief that they could continue to discuss issues, but had to do it in multi-stakeholder context, and all results had to be non-binding.

But these organizations just highlight that the role of nation-state is central to all problems. There are 4 basic categories of substantive policy issues:

1. Critical internet resources
   1. e.g. unique identifiers. top level domains, multi lingual standards, etc.
2. IP protection
3. Content regulation
4. Security

The many tensions between these fields have lead to many institutional changes.

However, there are common patterns in modes of governance that have arisen: national control is always undermined and asserted in new forms, scale shift in activity - but old modes of content regulation not scalable, organized groups work to takedown copyrighted material and child porn, there is more delegation to non-state actors to regulate the Internet, and a push to make ISPs responsible for policing.

The changing role of state is what is interesting and important. State-free Internet is threatened by the problems outlined, and attempts to deal with them by the old vanguard that is not equipped to deal with them.

Prof. Zittrain's Presentation

Prof. Zittrain shares a lot of the same commitments as Prof. Mueller, but he approaches it from a different angle. There are different methodologies that different academics follow when thinking about Internet governance - what is it? how do we define it? and what tools do we have to solve it?

But framing the topic changes how you look at the issues. Political scientists view the nation-state as the central player, but this is different from how other people would look at it. The thought of multi-national, multi-stakeholder governance is something that Prof. Zittrain doesn't naturally think of because that's not how he was trained.

ICANN felt like it could have been great at creating a new Internet constitution. But Prof. Zittrain's experience with it made him feel that is is really hard to do. For example, how do you define a stakeholder? You pretty much have to accept everyone who claims to be one, but that leaves out the people who don't realize they are stakeholders. How would we allocate the board seats? This leads to an unresolved tension of the idea on one hand that we know some issues are too important to leave to the geeks, and the problem that the geeks aren't in a good position to make this kind of decision. It's hard to get consensus - tech people don't even want to be there at these IGF meetings.

So should we even invest in this IGF thing? Does it even make sense? Does it, structurally speaking, turn out to be flawed?

So what are the issues that need intervention at the international level? Intellectual property, surely, and maybe also for other types of content control. And what about security? Prof. Zittrain finds that the most interesting question. The Internet system is designed to allow everyone in, but what happens when there are bad apples? Wikipedia is an interesting example of how the Internet can govern itself.

Class Discussion

On the Presentations

Prof. Mueller responded that he was not an advocate of multistakeholder governance. He wants maybe networked governance, and sees the "big room" idea as precisely what's wrong with multistakeholder governance because most likely, people outside of the room may actually be the ones that control what happens. The political science approach highlights the problems with this. So Prof. Mueller wanted to hear more from JZ about how he proposes to deal with the issues. It's a hard problem, but is there an optimal solution? Is there a method he proposes?

Prof. Zittrain wants several pilot projects launched by fairly small, tight groups, then wants to scale them if they work. This seems to parallel how the Internet happened, how Wikipedia happened. It seems more organic. He likes the ".org" better than the ".gov" (metaphorically speaking). That doesn't mean one size fits all, but Prof. Zittrain is skeptical of attempts to integrate into the Internet protocols a bunch of new features. He thinks that the standards groups and protocol groups (IETF) are out of touch and are too self-conscious to be effective today. There are also no statutes on point to deal with the issues of the Internet, and by the time a judge is asked to weigh in on the problem, some outcomes are precluded because of the ubiquity of certain things on the Internet. Prof. Zittrain has some concern about precluding Internet development through government action. The specter of state power limits us in solving problems that we can recognize and deal with using traditional means. The ACLU, for example, knows how to challenge the government. Prof. Zittrain is interested in how the waves of the market change things, rather than the government, and how they deliver us into an environment where we accept regulation.

Prof. Mueller responded that we need to protect ICANN from governments, but at the same time protect rights. The ACLU works in the US, but what about the global internet? He sees the need to attack the problem at a global level.

Prof. Zittrain says geeks brought us the net and are still pretty good at solving a lot of problems on the Net. We were able to benefit from that.

One of the people in the class asked, could there not be a meeting place between the geeks and the regulators? Prof. Zittrain responded that there is currently a libertarian ethos on the Internet. Geeks seem to have a different idea about what would be acceptable than the regulators. Not because they think government doesn't do a good job, but because they don't want to be interfered with. Prof. Mueller doesn't think there is as strong of a libertarian bent from the geeks. Responding, Prof. Zittrain clarified that there are perhaps two typs of geeks - slashdot geeks and "tech geeks" who want to solve problems and like tech, but aren't as deep into it, i.e. 02139 (MIT) geeks vs. 02138 (Harvard) geeks.

The conversation then shifted to a comment from a "geek" in our midst. Dharmishta's dad, who works as a CIO at San Francisco State. He stated that he often feels pressured by those around them, and like a co-conspirator when told to take things down, do DPI, or other "regulatory" things. He says that he and others like him don't want to be the bad guys, or the Internet police.

Prof. Fisher then comments that there are some things that need management, and completely decentralized behavior doesn't work well. He wonders what exactly these things are. What might be on this list? 2 categories - allocation of resources, and stopping behavior that is socially noxious. E.g. in first section is domain names, and in second, child porn. Maybe copyright infringement? Maybe security?

Prof. Mueller feels that there should be governance in certain areas, and the object of that governance should be to protect and secure freedoms. He notes however, that there is a difficult tradeoff between flexibility, openness and youth of new forms of governance, and the location of private governance in certain hands. On issue of scarce resources, it doesn't mean we need to control outcomes; we don't need to achieve certain objectives. We just let people use predictable rules.

After Prof. Mueller disconnected from the video conference, Prof. Zittrain spent a few minutes describing a political theory-type view of Internet governance: Consider an x-y grid: on the x axis, from left-to-right, we go from hierarchy to polyarchy, and on the y-axis, from bottom-to-top, we go from bottom-up governance to top-down governance. Federalism is in the first quadrant. Market is in the far right part of the first quadrant. Authoritarianism is in the far left part of the second quadrant. The Internet seems to be in the fourth quadrant. The classic Internet of 1995 is in the far right part of the fourth quadrant.

The third quadrant is a corner that interests Prof. Zittrain. He thinks that people in the fourth quadrant who need to solve a problem seem to move to the third quadrant. The question is who do you use (and what quadrant are they from) to solve your problem? What's interesting about wikipedia is how it tries to harness the civic aspects of its contributors; it wants to make everyone personally invested. Kind of like how in the UK, people want to be involved in civil society, and the government actually wants to know what the people generally think. This is how he sees the Wikipedia idea getting into government.

Prof. Zittrain thinks that the Google News "addendum" feature is interesting. Anyone who is quoted in an article is especially privileged to make a comment on the article. It doesn't let just anyone leave a comment. But it also doesn't address issues of how to validate someone, and whether that person is "mentioned." Google just lets the people figure it out.

A student asked whether there *is* actual power and control that we just don't recognize? For example, Wikipedia administrators, Obama's message being top-down even though his campaign seemed like it was bottom-up. Is the Internet that diffuse?

Prof. Zittrain says that in the case of government, it doesn't like unpredictability. It needs to have everything figured out. This is how modern governments view things, but does this work with the Internet?

Another student asked, does the current makeup of the Internet mean that people have a hard time joining the crowd, and could the government help people join the crowd?

Someone else asked, how do we balance issues of security with issues of openness? With content? Where do we strike the balance? What balance does each player need/want? What if the government tried to tax use? Would we accept that, versus the "free" use that we have now?

Pre-submitted Questions

The class submitted questions on the topic of Internet regulation that related to topics we had already discussed in class. There were many interesting and thoughtful questions, however we did not have time to address them.

For a look at the questions submitted by the class, click here

Teacher's Guide

Evaluation of the Class

Question Submission

As outlined above, we asked the class to submit questions on topics we looked at through the term and issues they raise with regards to Internet regulation. This generated a healthy set of thoughtful and provoking questions.

One thing that was noticeable was that many students were interested in the issues of copyright, network neutrality, and how they are accomplished both nationally and internationally. It was interesting to see where the students' interests were.

Live Discussion

The interaction between Profs. Mueller and Zittrain was enlightening and stimulating. Part of what made the discussion so interesting was that in addition to both professors being very knowledgeable and engaging speakers, their viewpoints on Internet governance are slightly at odds with each other, even though they share the same goals. This made for a friendly but still adversarial conversation between them, with both sides pushing back at each other's points. We allowed the discussion to go where it naturally went, not trying to control the discussion too much. This was successful in that it allowed the students and the presenters to speak on things they were interested in.

The fact that Prof. Mueller joined the class via video conference made having a more natural discussion difficult, however it still worked reasonably well.

We had planned to address some of the questions and topics generated by the class in their question submission. However, we decided to just let the conversation continue.

Though we couldn't address the questions submitted, the choice to allow the conversation to continue seemed like a good one. We felt that the students were engaged and did not need to be encouraged to discuss new topics or ideas.

Use of Technology

Prior to class

We used the email list to elicit questions from our classmates to use to stimulate discussion. These questions were aggregated using a Google Form, which allowed for a quick and easy way for us to see what questions the class had.

This worked well in encouraging people to submit questions. It was a quick and easy way for the students to contribute. It also worked well from our end - we were able to keep our inboxes free from an influx of questions, and we could both sign up to have access to the questions online.

In class

For the in-class session, we chose not to allow any use of laptops. We found that during previous iterations, laptops tended to distract people from the main discussion. When we made this decision, no class had yet banned laptops. However, by the time our session occurred, several classes had used this strategy.

We also had Prof. Mueller join us via video conference. The technology worked well for our needs, and allowed Prof. Mueller to join in and contribute where he otherwise would not have been able to. One problem with video conferencing though, is that it makes it feel less like a group discussion and more like one side talking to just one other side.

Finally, the room we had for the video conference was not ideal. The room had a capacity of about 110-120 and our class had about 30 members. This made the room feel empty and consequently the class less engaged, despite the fact that many people were participating and contributing.

Suggestions for Future Iterations

We found that we had a lot to talk about, but too little time. A suggestion would be to pick one topic, and focus on that. In the class, we ended up mainly engaging in a theoretical discussion about how to regulate the Internet (if at all). This conversation was good, however we had planned to do more, and had asked the class to prepare much more than we had time to cover.

There are many interesting topics in this field, so picking one that a majority of people are interested in should be easy. A suggestion would be to solicit ideas from the class prior to the session to find a topic that people are knowledgeable and interested in, and to focus the class there.

Like many of the other sessions, having more than one day to discuss such a broad topic would be useful. The opportunity to let ideas rest and to approach the topic from a different direction on a new day should not be wasted. In the future, we suggest revisiting topics on different days, and trying to link them to other topics.

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Old discussion here