The Debate Over Internet Governance: Jay Fenello

A: Wow.� Now I know why we need an hour. I think the internet is going to change our world.� It�s very exciting and it is an extremely strong power for positive change and also the potential for some negative change.� It�s a wide open question at this point.

Q: In terms of positive change, what would you most like to see it bring about?

A: I see the convergence of a lot of activities right now.� I see�What I see happening in the world is that there is a new consciousness coming about.� We�ve had the industrial revolution that changed how we manufactured things and what we are having now is an intellectual revolution.� That�s more than just knowledge, that�s a consciousness thing, that�s a raising of consciousness from where we�ve been in the past to where we are going.� I think only good will come of that.� I know we are touching on some spiritual stuff here but you know I see a lot of that happening and I think the internet will only make that happen quicker and I am very excited about the prospects there.

GOVERNANCE: Is Formal Governance Necessary?

Q:� Do you think a formal governance structure is a necessary component of the development of the internet?

A: I think governments exist for a reason, just like our government formed at a time when there was a lot of freedom in the colonies.�� It formed because people need to have some way to resolve questions that can only have a single answer and rather than have that be the strongest, people institute government to make that a fair process, to look out for the common good, the collective.� That need exists whether we are talking about the internet or the local county seat or the national government.� The reasons for government are the same and they are legitimate.� There are reasons why governments exist and should exist.� So, yes, I think there will government of the internet and that it is a required and necessary part of the internet.�

Q: With respect to the internet, what kind of questions are the kind that require a single answer? The kind that need a government or formal governance structure?

A: I think the reason I am involved in the debate is one of the reasons is you have a resource that can really only be administered by one source.� In this case, it is top level domains.� Based upon the architecture, you can really only have one administrator for each of those top level domains.� So that means you have a limited, a constrained commodity. Somebody has decide who gets to have that and those who do get it what rules apply to them.� So that�s a legitimate role for governance.�

GOVERNANCE: Structuring Global Internet Governance

Q: What�s the proper structure of that governance? I know throughout the messages you�ve posted to the names listserv you�ve talked about global internet governance. What is a feasible way of structuring global internet governance?

A: Well, you know, I am a strong believer in a lot of the principles that exist in our Constitution.� The Constitution says that people should be free, people should be free to do what they want as long as they don�t harm other people.� It says the power resides with the people unless they decide to give that up to the government for the common good.� I think that a similar model needs to apply in the internet.� As you know from my writings, I don�t believe what we have today is that.� I believe what we have today is a minority that is making decisions for the majority.� I see that as a big problem.

GOVERNANCE: Is ICANN Governance?

Q: Bridging on the existing structures of governance, particularly ICANN, I think it is interesting that ICANN doesn�t really see itself as a form of governance.� What do you think about that self-description?

A: I think that is rhetoric.� I think that that is self-interest causing them to describe themselves in a way that is likely to hide their true role and true intentions.�� You�ll notice that the same time that they say that in one form they�ll describes as a governance body in other forms.� You need to read between the lines.� If you ask them if they are a governance body, they�ll say no.� But if you listen to what they say elsewhere, you�ll say they are describing themselves as a governance body over here so why is this inconsistent.�

GOVERNANCE: Using the U.S. Constitution as a Model � Part I

Q: You were talking a moment ago about using our Constitutional structure as a basis for understanding how governance should be established and what structure will evolve from a bottom up view of the way government power is created.� Do you think that creates any complications when you are dealing with a medium that is as truly international as anything we�ve ever seen before?� In that some of the people who are participating in this debate may not share the same views about government and governance?

A: If we consider that government is instituted among people for the common good and if somebody disagrees with that, it is generally because they feel their common good is more important than other people�s common good.� Even though we are talking about a global flora or whatever you want to call it, and that is has the potential to have cultural differences, I don�t see that as a problem.� I see that if we allow people to achieve the maximum that they can be and towards that purposes they are willing to give up whatever it is they are required to give up to the governance body that in the end the pie will be bigger.�� It will make the world a stronger place.� I�ve always argued for diversity.� One of the things I really dislike about ICANN is the way that they are trying to force the entire world into a single model, whether that�s a business model or that�s a regulatory model whatever it is, whenever you eliminate all the diversity, we as a people, we as a species are worse off because of it.�

Q: Can you elaborate a little bit�I notice looking through your postings on the listserv that you do talk about the concept of diversity a lot.� Could you pin down a little more concretely what sort of diversity you are talking about, what sort of interactions�?

A: A very simple description is the uniform dispute resolution policy.� That is a very pro-trademark type of procedure that is really�, that has a lot of ramifications when it comes to free speech and who gets the right to have a name on the internet.� If you take a look at the results of that policy, you�ll find that the companies are the biggest and largest and those companies with the most resources are going to be the ones that are going to control naming on the internet.� While that may be good for e-commerce, it is not good for freedom of speech, it�s not good for diversity, it�s not good for cultural comments and all kinds of speech issues and I see that as a big problem.�

ICANN: Can ICANN be Fixed?

Q: Can ICANN be fixed or do we need to start ground up again?

A: I�ve argued for a long time that the cyber-world is a reflection of our real world.� I still believe that to be true.� Unfortunately, what I think that we are seeing here is that instead of ICANN evolving to become more like the U.S. Constitution, we have ICANN evolving to be more like the way the U.S. government currently works.� So while ICANN needs to be fixed, we have a lot of problems with our government in general.� I think that all of these issues really need to be addressed.� ICANN is a problem but whether we tear it down and start over or whether we fix it is kind of a secondary issue to how are we really going to fix the problems that we have today.� We have soft dollars that are influencing all of the decisions that happen in Washington to the exclusion of the people who are the weakest and are unable to afford to lobby our government.� We have the continued consolidation of multi-nationals purchasing thing like the media outlets � you know the AOL Time-Warner purchase and merger.� You have less and less diversity in the reporting of the news which tends to support the consolidation of businesses and other avenues within our government.� I see all of these issues as kind of being the same and so we have a lot of problems to address.� ICANN, I see it now, as more of a symptom of the problem than as a unique and distinct problem.�

ICANN: The Role of Multi-Nationals

Q: It seems to me reading through a lot of what you�ve written that you have some concern about the rise of these multi-national economic powerhouses and what they do to national governments and the role of national governments.� Starting with that idea, do you think ICANN is becoming one of those multi-national powers that will ultimately challenge national governments or is it just as you say a symptom of the rise of companies like AOL Time-Warner that have such economic clout across borders that they have a new and enormous political influence that maybe we�ve never encountered before?

A: I see that the rise of the multi-nationals assuming power superceding that of national governments as a real problem.� A while back I posted a study from the U.S. Air Force from 1997 that examined eight different scenarios and multi-nationals taking control away from national governments and national sovereigns was one of the likely scenarios.� I don�t think that�s really a scenario.� I think that is reality.� I think that is what has happened.� If you take a look just recently Walter Cronkite issued a statement last week as a matter of fact.�� Well he echoed the same concerns I�ve had about our media telling us less and less, actually telling us more and more about less and less.� We get tons of news but what they tell us is not very much.� They don�t really explore issues.� We can get hours and hours of coverage of an airplane downing but you know we get two minutes of coverage of a riot that happened in Seattle.� This is only going to get worse as the media continues to consolidate and their only interest is the bottom line and profit and protecting their own interest.� I do seeing that all coming together and that really being a big problem.� The biggest issue is awareness.� People aren�t aware that this is happening.� I am one of the people out there yelling that the sky is falling but not everyone believes that yet.� With more people like Walter Cronkite coming on board, I think the word will get out.� Hopefully through the internet that will help even further.�

Q: Just to clarify, where would you put ICANN in the realm of these multi-national entities.� Are you looking only at kind of economic entities or � is it possible that ICANN could be rising to a position of influence where it has the same kind of power that some of the economic players that you�ve have? Or is it going to be just another institution subject to them?

A: It is going to be another institution subject to them, just like the WTO is another institution subject to the multi-nationals.� The multi-nationals have had a huge role in establishing ICANN along with national governments.� It�s a vehicle for them to make decisions despite the best intentions of the people that have worked to see ICANN formed � and I am referring to the people who are my contemporaries who have worked to make it an open, bottom up kind of government thing.� When in fact it is not that at all.� It is really a way for the multi-nationals to come to decisions regarding this worldwide infrastructure.�

THE FUTURE

Q: What�s your vision of the domain name system in ten years?

A: I am certainly not encouraged by where things are going.� Right now we are already seeing problems with the domain name system from the recent changes that ICANN has implemented and I think that is going to get worse.� Ten years from now, I suspect, it will be where the leverage is applied to control what people say and do on the internet.� If you break the law, you lose your name or you get suspended or you get restricted as to what you can do with your name.� That�s the enforcement vehicle for the thought police of the future.�

Q: Look ten years into the future and put yourself in the position of designing a governance structure.� What would that look like?

A: I�ve always thought whatever the governance structure should be, it should be based on some kind of objective criteria, not subjective.� One of the problems with giving power to organizations of organizations, which is what ICANN has done, is that it is all subjective.� Who gets to say that out of the seven constituencies in the DNSO six of them need to be businesses and only organizations of businesses can be represented there?� It�s really a formalized old boys network that is completely subjective and there�s no basis for changing how those decisions are made based upon any objective criteria.� So that why when I was putting forward some plans for governance as long as two or three years ago, they were always based upon some kind of objective criteria, like one domain name, one vote or one IP address, one vote.� Those are objective and easy to quantify and easy to change over time.� As the ownership and control of those resources change, so too would the way the votes and the voices in that structure would change.� That�s a much stronger model for the future in my opinion.�

CONSENSUS: Is Consensus the Right Standard?

Q: There�s been a lot of debate about the continued use of consensus as a kind of paradigm for ICANN and internet governance.� It seems to me that the central difficulty with that is that ICANN has moved away from kind of technical questions and is now in an area of very political decisions.� What is your take on the use of consensus in this kind of structure?� If, as I suspect if you would like to drop it or amend it in some way, how would you do that?

A: Consensus is an oxymoron.� It is an excuse of a way to make a decision.� It can be claimed �right now we have a vacuum.�� We have no idea who is saying what or if twenty percent of the people believe something or if ninety nine percent people say something.� ICANN just claims consensus on any decision that they make.�� What they mean by consensus is the hidden powers behind ICANN have decided that this is the right solution and that that�s the consensus.� We don�t know who those hidden powers are but we do know that when they make a decision that is what the consensus is.� Consensus is not a good way to make these decisions.�

Q: What�s a better way?

A: Going back to some objective criteria over who gets to decide and some kind of voting procedure.� If you say it is one domain name, one vote or one IP address, one vote, then you can say you need a majority or a super-majority to make a decision.� Once those are in place, then you always know what the criteria is.

ICANN: Defining ICANN�s Constituency

Q: What kind of rules do you envision as being beneficial for deciding who can participate and who can�t?

A: I go back to the Constitution. Initially, it was those who had a stake in the system, those who owned land, were the ones who got to decide.� In this case, land is IP addresses.� So that�s a good criteria in my opinion.� Domain names can also be considered a form of property.� That�s another good criteria.� Those happen to be the two most important resources that ICANN has authority over.� For those reasons, those are all good criteria for decision making and allocating votes or whatever you want to use there for decisions.

GOVERNANCE: Using the U.S. Constitution as a Model � Part II

Q:� P-R and I both notice that there is a signature on your emails quoting Larry Lessig.� The quote is:

We are creating the most significant new jurisdiction we've known since the Louisiana purchase, yet we are building it just outside the constitution's review.

What�s the importance of that quote? Why is it at the end of all your messages?

A: I think that is a very concise description of the major problem that a lot people have with ICANN which is that it circumvents the Constitution in way that eliminates all of the protections that we have and have come to expect as U.S. citizens.� You no longer have due process.� You no longer have a Bill of Rights.� You no longer have the default state of if it is not explicitly given to government it remains yours to do with as you please.� All of these things have been thrown out the window because of the way ICANN has been structured.�

Q: How do we know the U.S. Constitution is the right standard to be applied to internet governance, especially since it is global and multi-national?� How can we know that the U.S. Constitution applies the right values and standards?� A lot of countries have modeled their constitutions on the U.S. Constitution but have also chosen to change various aspects in their models.� So how do we know that this is the right type of standard that we want to apply?

A: You can argue a lot of different positions on that.� I would only say this.� The U.S. Constitution has served this country very well.� To the degree that we are the country that other countries want to emulate, that we�re the society that other people want to emulate, not to say that other countries don�t have things we can learn from�When I go to Europe I am amazed at how much more they enjoy their lives over there and they have different value systems and those are things we can learn from.� But the U.S. Constitution is really, I think, about higher values than that.� It says that people should be free to do what they want and only if they decide if government needs to help them with something, that government takes that authority.� Those are very solid and secure values.� They�re designed in a way that prevents the capture of government.� What I see happening today is we�re seeing power consolidated in a way that it is being captured to circumvent things like the Constitution.� That�s a major problem and that�s just not about ICANN. That�s about the WTO, that�s about multi-nationals taking power away from sovereigns in a way that eliminates peoples� voice in how decisions are made.� Those are all symptoms of a problem with the Constitution being circumvented in a lot of different ways.

Q: I know we�ve talked a bit earlier about your sensitivity to cultural diversity.� Doesn�t the imposition of the U.S. Constitution stand in tension in some way with the idea that we want to promote cultural diversity?� For instance, what if a specific country is opposed to the values that we think should be applied to the internet? How would we resolve that in a global internet governance structure?�

A: Again, I hear this argument, but it is a nonsensical argument.� When you say that a government would oppose the values in the Constitution, you�re saying that the power structure in a country opposes the principles in the Constitution.� That says nothing about the people in the country opposing the Constitution.� The Constitution is really about how much power does a government have over its people.� Our Constitution says that the people has [sic] the power over the government, not the other way around.� As long as that is the case, then as people come on board the internet, their values will be reflected in what they are able and unable to do.� To say that their government doesn�t support that is a nonsensical kind of argument.�

Q: Are we then assuming then that if individuals had a choice they would choose to adopt the U.S. Constitution�s standards?

A: I think it is a more complicated problem than that.� Just like many in our country don�t realize the extent to which multi-nationals are driving policy today, I think people in other countries a lot of the concepts that are inherent and understood in our country.� One of the reason that the so called domain name wars were as contentious as they were is because people come from very different cultural backgrounds.� A lot of them simply don�t understand entrepreneurship. They don�t understand the kinds of freedoms that we take for granted in this country.

So we have a long way to go and that goes back to some of the questions you asked earlier about what I hope the internet will bring and what is the potential of the internet.� The potential of the internet is to raise the collective consciousness of our world so that we all can see each other�s good points and bad points, warts and all.� America has a lot of problems, so do other countries.� But America has a lot solutions too and so do a lot of other countries.� The ideal solution for the internet is where each of our strengths can be implemented on the internet and each of our weaknesses can be left behind.� That�s what evolving our society is all about.� Let�s take the good from each culture and each society and let those rise to the top.

PERSONAL ROLE IN THE DEBATE: Why Do Others React So Strongly to Your Positions?

Q: Reading through the many postings to our listserv, I can�t help but notice that your postings tend to elicit sharp, very opinionated, sometimes very heated reactions.� What do you chalk that up to?

A: I think it is because I am relatively effective in getting my point across.� The people who are opposed to all of the things I am talking about here, those who prefer to keep the powers that be in the decision making roles, do not like what I have to say and do not like the fact that other people are hearing me say it.� So they try to discredit me and shut me up.�

ICANN: Working Outside the ICANN Structure

Q: Related to this I have a question about your strategy, in your introduction to the listserv, which I have right in front of me here, your last paragraph ends with this:

In closing as this summary reveals ICANN has shown nothing but contempt for the valuable contributions of LRSC, BWG and the rest of the internet community.� I refuse to waste my time further.

It seems to me that you continue to put in a lot of time on these questions.� Why is that?

A: I probably could have stated that better.� I refuse to waste my time within the ICANN structure and I haven�t.�� I have never subscribed to an ICANN mailing list.� I have stopped providing any kind of response to their formal inquiries.� Everything that I do is outside of ICANN.� That doesn�t mean I am disinterested in the process.� That�s not true. I am very interested in the process and I remain committed to being a player in the process and doing the best that I can to positively influence all that ICANN represents.� I just won�t waste my time within the ICANN structure because I know it won�t do any good in there.

Q: I have one further quote in mind though I don�t think I can grab a copy of it off-hand, but you essentially said somewhere else on the list that right now is a time where the powers that be within ICANN are deciding the rules of the game and are making decisions that will shape how these questions are determined in the near future and the longer term.� You went on to say that undoing what is done today will take a very long time�

A: If it is possible at all�

Q: Exactly.� Given that, do you think arguing from the outside is really the most effective strategy?

A: I think it is the only strategy.� Working within the ICANN structure has not made an iota of difference.� For example, Boston working group and open RFC fought vigorously to make sure that the at-large membership got to select half of the board to constrain what the board can do.� We built in some restrictions in the by-laws.� Over time ICANN has not only ignored that, they�ve taken steps to diffuse everything that we worked so hard to put in there.� If we had nothing, we would be right where we are today.�� Working within ICANN is not a solution to this problem.� It is really a waste of time.

PERSONAL BACKGROUND IN INTERNET ISSUES

Q: If you would walk us through your history with the debate�It was my understanding flipping through your postings that up to a certain point, perhaps even up to the White Paper, you were kind of on board.� What happened to change that, I guess is the question?� Where was the rift between you and ICANN?

A: I dropped out of the ICANN process in May of 1999.� I know it well because like you said I had been very active in the process.� To kind of go through the history, I started off as an entrepreneur with a business idea, ended up with a fight over who gets domain names.� I thought it was a fight about domain names.

PERSONAL ROLE IN THE DEBATE: Iperdome

Q: Was that Iperdome?

A: That was Iperdome.� And as we started fighting about domain names, I realized that this was really more about business models.� As we thought about business models, I thought you know this is really about internet governance.� As I thought about internet governance, I realized that this is really about governance period.� At each step of the way, as the fight escalated and as apparently we kept losing battles, it�s like we were fighting about the wrong thing.� So now having been in this for over three years now I realize this is rally about control, not just internet control, but control in general.

Q: What happened to Iperdome?

A: Iperdome has suspended operations and is kind of in a state of limbo because their livelihood, their success depends on some decisions that ICANN is very unlikely to make, based upon statements made by Mike Roberts on your mailing list there.� So you know I don�t know what is going to happen to Iperdome but I know they are still hanging out there and should things change and should there be an opportunity to do so, they may come back to life.

Q: What would you say to someone who criticized your perspective and tried to undercut your own claims to legitimacy in this debate with the charge that you had a vested interest in Iperdome, Iperdome was involved in the domain name debate, it stood to gain by winning the right to register names, it didn�t and then you become one of ICANN�s harshest critics?

A: That�s all true.� Those people who say that make it sounds like it is a sin to want to run a for profit business.� Inherently, someone who wants to make money on the internet is an evil person.� I�ve always argued against that.� Just because someone wants to run a business does not make them an evil person.� What is evil is people taking control and taking over while claiming it�s for the public good all while they are doing it for selfish purposes.� Where I am today is that Iperdome is pretty much dead in the water, but I am still in the fight because I believe in the values and principles.� So I�ll keep doing it and they can keep saying what they want to say and it won�t make any difference in what I say or do.� That�s to be expected.� As I said earlier, people try to discredit me because they don�t like my message.�

ICANN: ICANN, The WTO & The� Media

Q: What do you think the link is between the riots in Seattle, the minimal media coverage and ICANN?

A: It�s funny.� One of the comments about the WTO riots was that the WTO delegates called the rioters arrogant juveniles.� It was funny that they picked those two words � arrogant juveniles � because that�s what Mike Roberts called his critics.� Me being one of the arrogant juveniles could immediately relate to this.� What I noticed is that the model is exactly the same.� You had a process whereby the WTO was set up by multi-nationals for multi-nationals and discredited and eliminated all of the minority voices from their process.� You have no representation for people within the WTO.� Decisions are made behind closed doors.� The WTO also has a uniform dispute resolution policy. How about that?� They call it almost exactly the same name.� What it is it�s a closed court of three judges making decisions about world trade in a closed room without any due process and without any kind of discussion about the issues or why they are making their decision. The models are exactly the same.� The process used to get us there is the same.� It�s the same model and it struck me�I�ve been so involved in ICANN.� I didn�t know anything about the WTO.� I�m sure the WTO people who have been involved in that fight have been so busy with the WTO that they had no idea that the ICANN fight was going on.� The fact that the media doesn�t cover any of them allows each of is to be marginalized and made a minority and silenced because we don�t realize that each other exists.� But the internet potentially has the ability to get the word out.� I don�t know if we will be successful.� The way I see it is we are in a race right now.� The race is for all the people who want to see legitimate governance, not decisions behind closed doors in smoke filled rooms, but legitimate governance to get together before power is consolidated so much that the internet is shut down as a vehicle of communications.� So we have a very small opportunity in my opinion.�

Q: Who else is working to establish your side of the issue?

A: When I wrote the WTO piece, I got contacted by a lot of different organizations who said you know what we agree with you and we are glad that you said something.� Those organizations range from religious to spiritual to political to activist to environmental.� There are a lot of groups that are finally starting to work together.� What was funny about the WTO riots is that you had such a diverse group of people come together that the media couldn�t even try to characterize them.� In fact, they even tried to discredit them because of it.� They said things like �people are just afraid of change. That�s why all these strange groups are coming together and working together.�� It�s mind boggling that that many different kinds of people can be opposed to something and no one really understand why.�

Q: Tell me about the lack of media coverage.� Why do you think that is? I know you discuss this a little bit on your posting.

A: Well Walter Cronkite does a good job of describing it too.� What happens is that the multi-nationals end up controlling media.� They do it through direct ownership and they do it through advertising.� The media is not about to take a position that would harm their advertisers because their advertisers will get mad at them.� Or they won�t go against the people who own them because they�ll get fired.� So the range of opinion that is expressed in what some people call the establishment or the elite media has become narrower and narrower, so the only you get are human interest stories these days.� The less controversial the story is, the more likely you are to see a lot of coverage on it.� So that�s why I believe the media did not cover the WTO riots because they did not want to talk about what people were rioting about.� Instead, they want to talk about the Hank Aaron story or I think Pete Rose was on that night.� The most esoteric topics were more important than why tens of thousands of people were being shot with rubber bullets in the streets of Seattle.�

Q: Isn�t a lot of that a question of supply and demand?� This is what people want to see.

A: That�s the most ridiculous argument I hear.� To say that we are going to cover Pete Rose instead of the riots in Seattle because our viewership has no interest in the riots of Seattle is someone making a decision.� If anything, recent history is saying that the decisions that the publishers and the editors of media are making are driving away their viewership.� I read someplace that newspapers have about fifty percent of the readership they did in the eighties.� So they are losing a lot of their clients, a lot of their readership because they are not telling us anything new, they are not telling us news.� All we are hearing is the same old stuff over and over and over again.�

ICANN: Is There Hope?

Q: I want to go back to something you said earlier when you were describing ICANN as a symptom of deeper ills in our political process.� What is your outlook for improvement in that political process?

A: I am about to announce something probably later tonight.� I inherently believe people are good.� Even if you are the president of a multi-national corporation, you�re a good person.� You may be making bad decisions because of your upbringing and because of your education and because of the reward system that is in place but inherently you�re a good person.� I kind of treat the world that way.� I believe people are good.� I believe that when they make bad decisions, it is because they have bad models in their heads and a lot of times people make decisions out of habit, not conscious decisions.� So this goes back to raising awareness and a new consciousness and a new way of looking at the world. If people can take a moment and really think about what it is that they are doing, what are the implications of what they are doing and why it is they�re deciding to do what they want to do, well that will change the world.� My point and what I am planning on doing is to help raise the consciousness about the way the world works and the way that things are going wrong and why they are going wrong and what people could do about it.� But, most importantly, is just to talk about it, instead of ignoring it, instead of pretending it doesn�t exist.�

Q: So what�s the announcement that is going to come out later tonight? Can you tell us now?

A: I�ll be publishing a weekly newsletter about these kinds of topics.� That�s really the announcement.

In the short time I have been involved I have to rethink the issues at least three times.� Every time I do, I always find out I haven�t thought about it in big enough terms.� It�s always a bigger story than I think it is.�