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 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?

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 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?

Guests

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

Session Design

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 accomplishment and what is the current framework. 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.

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
• Intro video from JZ's 2004 iLaw Course

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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Old discussion here