This website was prepared as a final project for the course “Internet & Society: The Technologies and Politics of Control” at Harvard Law School.  This site aims to do that which might seem impossible in a medium that changes so quickly and so dramatically – to freeze a particular moment in the debate over internet governance. [Note: as of May 2005, the legal landscape has continued to change. Here is a link with more recent information about internet governance] 

The moment we seek to capture here is no ordinary moment in the development of the internet.  It has been called nothing less than “the Internet’s constitutional moment."[1]  As the internet’s promise as a transformative cultural, economic, and political phenomenon has become more widely recognized, increasing attention has been paid to the question of whether we need internet governance and, if so, in what form.  Do we need a formal governance structure or will informal means of governance - namely behavioral norms established by the internet community or by the code itself - suffice?

At some level, even those most wary of formal governance for the internet recognize the need for central administration of some of the internet’s technical aspects.  The assignment of IP addresses represents one such widely recognized aspect.  What makes this debate so engaging and controversial is that the distinction between technical coordination and public policy-making in practice is much less clear than in theory.  The blurring of this distinction has created an opportunity for broad reflection on what kind of decision-making processes there should be in cyberspace.  Does responsibility for assigning names and numbers imply the power to create a dispute resolution system?  Does it also imply the power to sanction those who do not follow mandated procedure by denying them a domain name?  If the answer to both questions is necessarily yes, then who should have a voice in creating the policies the internet community will be made to follow and in determining questions that have increasingly large political and financial implications.[2]

If nothing else, what is clear is that the decisions made today about the technical architecture of the internet and the body which will administer that architecture will shape the internet’s development for years to come. 

ICANN

The creation of the Internet Corporation for Names and Numbers – known widely as ICANN – in November 1998 has given the debate on internet governance a new focus.  ICANN’s mission is to administer the allocation of the IP address space and to manage the domain name system and the root server system functions.  ICANN represents the U.S. Government’s commitment to private sector, self-regulation of the internet.  The core principles articulated in ICANN’s foundational documents – the White Paper and the Memorandum of Understanding (MoU) with the U.S. Department of Commerce – are stability, competition, private sector bottom-up coordination, and representation. 

Though new and distinct, ICANN is not the first attempt to address the problem of assigning domain names and IP addresses.[3]  In 1958, the U.S. Government began funding a research project called ARPANET that would lead to the development of the internet.  The Department of Defense’s Advanced Research Projects Agency (DARPA) established and managed this project until the 1980s.  By contract with DARPA and in affiliation with the Stanford Research Institute (SRI), a graduate student named Jon Postel at the University of California at Los Angeles undertook the tasks of assigning blocks of numerical IP addresses to regional registries and of maintaining a list of the host names and addresses.  Postel also maintained a list of the documents produced by researchers working on ARPANET and coordinated the Request for Comment process.  As these tasks became increasingly unwieldy to manage single-handedly, Postel delegated additional administrative aspects of the list’s maintenance to SRI.  These functions became collectively known as the Internet Assigned Names Authority (IANA).  By 1992, the National Science Foundation (NSF) had assumed responsibility for coordinating and funding the management of the non-military part of the internet infrastructure.  After soliciting competitive proposals, the NSF entered into an agreement that allowed Network Solutions Inc. (NSI) to maintain the authoritative database of internet registries and to register domain names in the key top level domains – the .com, .org, and .net gTLDs. 

As the expiration of NSI’s contract with the U.S. Government neared in September 1998 and pressure for changing the existing system of managing the Domain Name System (DNS) began to build.  As the internet became increasingly more commercial and more global, it no longer seemed appropriate for U.S. research agencies to manage the DNS and to grant monopoly status through contractual arrangements.  Prior to this, however, the internet community had already begun serious debate about the future of the DNS.  In May 1996, Jon Postel proposed the creation of multiple, exclusive, competing top-level domain name registries.  Each of up to 50 new domain name registries would have the exclusive right to register names in up to three new top-level domains.  The controversy sparked by this proposal led IANA and the Internet Society (ISOC) to organize the International Ad Hoc Committee (IAHC) to resolve DNS management questions.  The IAHC proposed the establishment of seven new gTLDs to be operated on a nonexclusive basis by a consortium of new private domain name registrars that was to be overseen by a council of stakeholder representatives.[4]   On July 1, 1997, President Clinton directed the Secretary of Commerce to privatize the DNS in a way that increased competition and facilitates international participation in its management.[5]  This debate culminated in the U.S. Department of Commerce’s White Paper in June 1998.  The White Paper called on the internet community to establish non-profit consensus organization to take over responsibility for registering names and numbers on the internet.[6] 

On November 25, 1998, the U.S. Department of Commerce officially recognized ICANN as the institution envisioned by the White Paper.[7] 

ICANN’s brief existence has been anything but uncontroversial.  Critics offer two main arguments against ICANN.  First, the process which ICANN has used to make decisions – on everything from the appointment of the Board of Directors and fees for registering domain names to its recent Registry Agreement with Network Solutions and its adoption of the Registrar Accreditation Agreement, despite serious objections to the latter – has been attacked as secretive and anti-democratic. ICANN’s interim President Mike Roberts has acknowledged that most of the criticism of ICANN relates to “process” and not specific decisions ICANN has taken.[8]  Second, critics charge that ICANN has already exceeded its scope of authority and threatens to continue to extend its reach to issues over which it has no legitimate control.  If ICANN succeeds in its immediate mission, then it will be the institution most well-placed to take on a broader governance role in the future as questions about privacy and protecting intellectual property become even more pressing.  This being so, the fundamental concerns about establishing an open and representative process are reinforced.

THE PROJECT

The idea for this website grew from the class [names] listserv that provided a forum for students to discuss internet related issues with a variety of participants – ranging from techies and lawyers to academics and entrepreneurs.  As soon as the [names] listserv was active, it became clear that one particular topic generated the most passionate postings: the debate about internet governance.  The sheer volume of mail to the [names] listserv was impressive, as was the exacting attention paid by each participant to what others had written. 

However, the volume of responses, the level of detail involved in the postings, and the starkly contrasting views of events offered by the [names] listserv participants made it difficult for those who are just learning about internet governance to understand exactly what is at stake, where we are in the process of creating a governance structure for the internet, and even whether anything we’ve seen thus far is accurately described as governance.  By asking some of those who have observed the debate most closely to reflect not simply on the detailed issues up for debate but on the debate itself, this site aims to develop a broader understanding of internet governance as a descriptive and normative matter.

To that end, the interviews conducted for this project do not focus on many of the specific issues that are currently on ICANN’s agenda – such as the addition of new gTLDs, the implementation of the Uniform Dispute Resolution Policy, or the formation of the At-Large Membership.  Instead, the interviews seek to develop an understanding of the underlying dynamics of the debate.  The participants have been asked to define and to assess the impact of some of the key concepts in this debate – such as consensus and governance.  They have also been asked to look to the future – to assess what kind of governance the internet will need, to think about alternatives to ICANN, and to suggest ways to improve ICANN’s structure.  In doing so, they reveal their own philosophies about governance and about humanity, as well as their own ambitions for contributing to the internet we will all use tomorrow.

In assembling the list of participants, our priority was to include a variety of different perspectives about the governance debate, rather than to serve more conventional understandings of diversity. Even judging by that goal, our selection is necessarily imperfect since there are many more voices in the debate than could be included here. Nevertheless, we hope that this site serves merely as a starting point for further discussion and that new voices and perspectives will be encouraged to join.

Although the [names] listserv provides an essential background to this site, its content does not appear here.  We felt that it would be unfair to those who posted writings to lift their words out of context.  Few – if any – postings stand alone because writers were frequently responding to the precise language and content of text from other posters whose identity can be difficult to identify.  Nevertheless, we encourage all visitors to this site to peruse the archives of the Internet & Society [names] list to see what the participants in this project and others have written.


THE IMPACT OF THE TERM GOVERNANCE

The central topic that this site addresses is governance.  Widespread adoption of the term governance – even by those who say that we don’t have internet governance and we certainly don’t need it – says much about where the debate is today.  Not so long ago – perhaps less than five years ago – the kind of passionate debate about internet governance that is now taking place would have been unimaginable.  With the formation of ICANN and the widespread realization of the economic potential of the internet, the debate about administering the internet’s technical architecture has been reframed as a question of political legitimacy.  In this context, calls for greater openness and for a more representative process have resonated with ever great force.

A written exchange between Esther Dyson, Chairman of the ICANN Board of Directors, and the consumer advocate Ralph Nader and Jamie Love of the Consumer Project on Technology provides a particularly compelling example of the way in which the reframing of the debate about ICANN as a question about governance has changed the tenor and the politics of the debate.  In responding to a series of questions posed by Nader and Love,[9] Dyson begins her letter by saying,

The White Paper articulates no Internet governance role for ICANN, and the Initial Board shares that (negative) view. Therefore, ICANN does not "aspire to address" any Internet governance issues; in effect, it governs the plumbing, not the people. It has a very limited mandate to administer certain (largely technical) aspects of the Internet infrastructure in general and the Domain Name System in particular.[10]

Dyson goes on to discuss the role of Network Solutions Inc. in this debate and, in doing so, reveals her perspective on the reframing of the debate,

Of course, "I want to protect my monopoly" is hardly an attractive slogan, and so NSI uses the langauge of democracy instead. In addition, it encourages and supports others who have a variety of reasons -- economic, philosophical or political -- to be unhappy with the way the community consensus has formed. Of course, many of these people are sincere in their concerns about the transparency of ICANN's operations and their interest in fostering public debate about its activities - as you are. But ICANN's goals and its actions are in fact the result of public debate and consensus - though not of unanimity.[11]

Dyson’s general point on the use of the language of democracy is well taken.  This site aims to look beyond the term governance to explore why and how the term has come to shape the debate.  A fundamental question about the continuing debate about internet governance emerges: is it the natural consequence of the development of the internet or was the terminology of the debate transformed in order to transform the debate itself?

We hope that your visit to this site is informative and that when you leave, your views on the internet governance debate are refreshed by new perspectives, if not by definitive solutions.  We welcome your comments on the site and on the topic of internet governance on the message board.

The debate continues…

THE AUTHORS

Gina Paik is a second year student at Harvard Law School from Woodland Hills, California.

P-R Stark is a second year law student at Harvard Law School from New York City.

 

The authors would like to thank John Wilbanks of the Berkman Center for his technical expertise and his endless patience.