Internet Governance and Regulation

Topic owners: Vera, Arjun

Precis

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. For example, even after ICANN's expansion of the top-level domains, 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. This topic seeks to explore through select cast studies the viewpoints of the major Internet stakeholders today (including the US government, ICANN, the UN Internet Governance Forum, businesses, and other private actors), to provide a clearer picture of where Internet governance is headed in the near future, and to establish why (or even whether) it matters.

Regulation and Control of Technical Structures and Standards

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

This 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. The new TLDs will cost in the six figures to register, and will likely start going online in 2009. While there will be an arbitration process for disputed domains (particularly in cases of trademark infringement and geographic domains), most domains will end up going to the highest bidder in an auction process.

Issues to discuss:

• Should we be concerned about control of generic domains, like ".news" or ".shop," by a few wealthy individuals or groups?
• Many corporations are opposed to this expansion because they already have established .com domains for their purposes and are worried about a potentially huge number of infringing domains, including in foreign languages, which may require them to spend millions to register additional domains. Is this a valid concern?
• How should disputes involving geographic domains be resolved if both parties are government entities? If one party is a private actor (an individual or business) and the other a government entity?
• On a larger scale, should we worry that ICANN is the sole body setting the standards for TLDs and resolving disputes?
• Although the US has supported worldwide participation in the management of country-specific TLDs, it is not willing to give up oversight of the authoritative root zone file. Who should control the root zone file, and why?

Regulation and Control of Substance

Case Study: 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.

Issues to discuss:

• 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?
• A review of the organizations moderating the many workshops that took place at the most recent IGF meeting shows a mix of government groups, corporations, and civil groups. Should we expect all these groups to have an equal say in setting the agenda for the IGF? If not, how do we ensure proper representation of all interested groups, regardless of power and influence?
• Is global governance of Internet use a good idea in any respect? If so, is the IGF the best form of this governance?

Concrete Question of the Week

With both structure and content, what issues does the Internet raise at the international level that require governance and what are the best ways to do?

Guests

• Milton Mueller of Syracuse University's Internet Governance Project.
• Robin Gross of IP Justice and a member of the Advisory Group to the IGF (to be confirmed)

Readings

• The Politics and Issues of Internet Governance - an essay by Prof. Milton Mueller
• Prof. Mueller and JZ discussing ICANN and top-level domains (TLDs) on the Internet Governance Porject 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 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

Optional Reading:

• Panel discussion transcripts - from the IGF's latest meeting during Dec. 3-6, 2008 in Hyderabad.
• List of Workshops from the 2008 IGF meeting.

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Brainstorming

Much like open-source software,

You'll want to be clear about using "free" vs "open-source," depending on what you mean and who your audience is! JZ 15:47, 15 December 2008 (UTC)

the Internet can be considered a collection of servers, pipes, and users spread all over the world.

How is this much like open source sw? (Not disagreeing, just trying to understand.) JZ 15:53, 15 December 2008 (UTC)

How does it keep working? One easy answer is that the United States (through actors public and private) just sort of gets its way.

Unpack. What does it mean for US to get its way? Gov't, culture, people? JZ 15:53, 15 December 2008 (UTC)

This isn't really a satisfying answer descriptively or normatively, though.

What was the question? "How does the Internet keep working?" Are there those who say the answer is "Because the US controls it?" JZ 16:00, 15 December 2008 (UTC)

With the rest of the world contributing more and more to the Internet as a whole, is it time for a change?

Do you mean Internet protocols and infrastructure, or apps, or content, or ... ? JZ 16:00, 15 December 2008 (UTC)

Guests: Susan Crawford?

She can certainly speak to the cluster of issues commonly called "Internet governance"! JZ 16:00, 15 December 2008 (UTC)

Some questions:

What are the options for internet governance? An ad-hoc system, or something more formalized? What should the regulations cover - everything or only the vital areas, such as cybercrime and technical standards? Should it be local or international in scope? --AMehra 19:18, 7 December 2008 (UTC)

An upstream question would be: What are the specific problems that Internent governance proposals are meaning to solve? JZ 16:00, 15 December 2008 (UTC)

International Regulation

• The UN's World Summit On the Information Society has come up with the Internet Governance Forum to help tackle some of these issues - is this a good idea?

Possible reading: The Path Towards Centralization of Internet Governance Under the UN - a series of three essays recently published on the Berkman Center's Publius Project.

Possible speakers: staff members of the IGF? --AMehra 18:52, 6 December 2008 (EST)

Sure, might be interesting to get to the bottom of the IGF. Milton Mueller at Syracuse could be a good guest for this. He has strongly criticized (though I might say not fully grasped) my own views on Internet governance and the IGF. JZ 16:00, 15 December 2008 (UTC)

Local/national Regulation

• Efforts by the FCC - in conjunction with and separate from the UN efforts.

Possible speakers: Kevin Martin --AMehra 19:18, 7 December 2008 (UTC)

It will be helpful to differentiate between governing the Internet -- controlling its infrastructure, protocols, or evolution -- and governing use of the Internet. You could pick a hot topic from the FCC's docket, though, and some there are about Internet deployment, such as the free wireless proposal just abandoned. JZ 16:04, 15 December 2008 (UTC)

Rights of Minors

Minors have long been recognized to not have free speech rights that are co-extensive with adults. But with the Internet, how do we define those rights? And what, if any, regulation should the government enact to protect minors on the Internet, while also respecting their rights?

There are two traditional categories where minors' free speech rights have been restricted. The first is with respect to pornography, the second with respect to the school environment. These two areas raise different concerns.

Jgruensp (fun topics, all: we could invite the CSIS commission which has been grappling with all these issues and is desperate for legal guidance)

Sure; you could take this topic a step further by looking at existing scholarship on the topic and/or the just-about-to-be-released report from the Palfrey Commission, chartered by 49 state Attorneys General to discuss protection of minors online. Given its Berkman Center connections, we'd have a good chance of getting the main players in that process to discuss. JZ 16:07, 15 December 2008 (UTC)

Internet Dependency (What if someone somehow takes down the net?)

We have come to rely on the Internet for almost every aspect of our lives. If the Internet somehow suddenly went "down" (through either a cyberattack or physical attack on key backbone pieces of infrastructure), the result would likely be calamity, as well as hordes of people who wouldn't know what to do with themselves. Can we even imagine what the world would look like the morning after such an attack if it was successful? Are we wrong to rely so heavily on a single tool whose detailed technical inner workings so few people truly understand? Are we setting ourselves up to be ruined when someone compromises this tool? What about the tradeoffs between keeping the Net free+open vs. regulation to ensure that it retains its functional integrity in the face of attack?

We can invite Dan Kaminsky, who recently discovered a flaw in the inner-workings of the Net that could have caused some serious damage. See, e.g., http://www.nytimes.com/2008/08/09/technology/09flaw.html?hp (or we could invite will smith, who defeated the aliens in independence day with the help of cyber-attack).

• I vote Will Smith. Unless everyone wants to get into the desirability of a DNS nonce of sufficient bitlength, in which case... no, still Will Smith. That guy's an elliptic curve cryptography fiend. However, if we do want to talk about design issues in the internet, and the failure of the marketplace to handle externalities created by poor software design, leading to the perpetual crisis of bugginess, we could do worse than to invite Daniel Bernstein. Plus, as an added bonus, he saw the issues that gave rise to the Kaminsky bug coming down the pike a long time ago. --Jgruensp

It might be interesting to see if there are contingency plans by various parties -- business, gov't, etc. -- to weather and respond to an Internet outage. We could ask the cybersecurity team from the DoD joint staff to present their most difficult problem here -- they're still in the early stages of thinking this through -- or perhaps cue to the new cybersecurity czar that is rumored to be brought on by the new Administration. (Then again, it might be too soon for that person to want to spend time interacting with a class.) JZ 16:10, 15 December 2008 (UTC)

Internet as International Conflict Zone

In light of the recent events in Estonia, have we finally reached the long-predicted era of cyberwarfare? Is cyber-espionage a counterintelligence problem or something more? (This article from the National Journal talks bluntly about perceived threats, although is perhaps a little too willing to attribute causation of certain events to Chinese actors on dubious evidence)

There is much sound and fury about "cyberwarfare"; I could see a class designed to see if there's a there there on the topic, and whether any of the theory applied to traditional warfare can be deployed to help us understand the phenomenon. JZ 16:12, 15 December 2008 (UTC)

Internet as an Extension of National Infrastructure

It is easy to define the borders of the nation in realspace (ports, airports, land crossings), and the tradeoffs between private propertyholders' rights and national security interests (making those tradeoffs? Not always so easy). But what are the national borders in cyberspace? Given the dangers described in the two topics above, what kind of role, if any, should national government play in monitoring and regulating major backbone communications links? What about the networks of semi-public industries such as utilities? Private corporations that store government secrets? Financial systems? Other types of privately owned networks?

--Jgruensp 23:54, 30 November 2008 (EST)

There's a lot of interesting stuff to be mined about interexchange policies among Tier 1 internet service providers, and some fun/confusing economics about such interconnections which would be good for the economist types among us. Ramesh Johari at Stanford is doing good work here, and David Clark down the street at MIT would be a natural for this. JZ 16:14, 15 December 2008 (UTC)

Case study: a look at the Comcast BitTorrent controversy

By now, everyone is most likely familiar with the controversy that arose after Comcast was alleged to have throttled BitTorrent traffic. The FCC decided to get involved, ultimately deciding that Comcast violated the FCC's Internet Policy Statement and ordered it to stop.

Issues to Discuss:

• The FCC claims jurisdiction, though it is unclear. Regardless, should the FCC have jurisdiction?
• If not the FCC, who would be the proper governing authority? Should there be one at all?
• What issues should we consider when determining how/if to regulate technical standards?
  • What does the net neutrality debate illustrate that could help us reach an answer?

Case Study: Congressional, judicial, and private attempts to regulate content on the Internet through laws (like COPPA) and private action

There has long been a recognition that there is a legitimate need to regulate content on the Internet, however many attempts to do so have met with resistance. Often, legislative attempts to regulate meet with criticism and challenges from Free Speech activists and organizations.

Beyond direct regulation, another possibility would be the creation of standards to allow private entities to provide effective content control. But would mandating certain technologies lead to effects similar to the V-Chip had on TV? i.e. would it just stifle innovation and limit the introduction of better and more useful technology?

A final possibility would be to allow the market to regulate itself. The government has at times encouraged this option through incentives to help resolve certain issues. For example, the Internet Tax Freedom Act, 47 USC 151 note, places a moratorium on taxation of Internet access provided that protections are put in place to protect minors. Perhaps as a result, perhaps due to market forces, ISPs offer filtering technology to those who want it. Like many ISPs, Comcast offers McAfee parental controls as standard in its Internet packages.

Issues to Discuss

• How should the Internet be shaped?
• What is the best way to achieve the stated goals?
• What areas, if any, should be encouraged? What areas should be discouraged? how?

Possible Readings

• Speta, J., FCC Authority to Regulate the Internet: Creating It and Limiting It, 35 Loy. U. Chi. L.J. 15 (2004). HeinOnline
• Lessig, L., Law Regulating Code Regulating Law, 35 Loy. U. Chi. L.J. 1 (2004). HeinOnline
• The Path Towards Centralization of Internet Governance Under the UN - a series of three essays recently published on the Berkman Center's Publius Project.
• The Politics and Issues of Internet Governance - an essay by Milton Mueller at the Institute for Research and Debate on Governance
• Mueller and JZ discussing ICANN and top-level domains (TLDs) on the Internet Governance Porject blog: One, Two.
• ICANN's process for applying for a new TLD, including the full draft applicant guidebook (warning: PDF).
• The 2005 WGIG Report (PDF/MS Word links on page)
• Panel discussion transcripts - from the IGF's latest meeting during Dec. 3-6, 2008 in Hyderabad.
  • List of Workshops from the 2008 IGF meeting.