The Debate Over Internet Governance: Carl Kaplan

A: Well, I don’t know if it can or it can’t, but there doesn’t seem to be…I would amend the first one and say that there is some sort of centralized aspect to governance. Again I am thinking of institutionalized governance. There doesn’t seem to be anything…Governance of the internet seems to be kind of ad hoc.

Q: Do you think that is the appropriate approach?

A: No, I don’t, but I am not sure. I don’t have an answer about how things should be, but I can describe the way things are now. The way things are, it seems to me, is that there is no internet governance. There’s laws that courts enforce in odd cases. There’s some things that the FTC is looking into. There’s ICANN. It does some little things on the fringes. There’s the EU-US data protection, which seems to be self-regulation. There’s nothing that is really regulating the internet. There are a lot of little things. It is very chaotic.

GOVERNANCE: Is ICANN Governance?

Q: So, I guess you just said that you don’t believe ICANN is governance?

A: No. What are they doing? What are they doing? I think ICANN is kind of an interlude to something that I don’t quite know what will replace it, but…ICANN is in an impossible situation basically. They were formed by the Commerce Department as kind of non-profit corporation that was going to get in there and do all this stuff in kind of a quick, no muss-no fuss manner that the government is not capable of. That’s why they delegated all the stuff to a corporation. Whenever ICANN tries to do something, everybody howls because they’re doing what the Commerce Department wanted them to do. People howl that they are not acting enough like a government. They are in a no win situation. Whenever they try to do something, everybody cries about it. So I don’t really think they can do anything. They are in an impossible situation. Like I say, I don’t think they’ll last. It’s just an interlude to something else is, but I don’t know what the something else is. For example, a year or two ago, they wanted to fund – they had no funding so they put a tax on internet domain names and Congress basically said what are you doing. So they backed away from that. Now they have to borrow money or get loans from big corporations to fund themselves. I think…I read the other day in Cairo that they accept five thousand dollar donations from law firms that want to distribute their flyers on the outside of the meeting. This is not my idea of a government. I don’t know what they are doing.

As far as the other aspect of ICANN – I know Harvard is working on it – some sort of representation of the internet at large through, I think the latest plan is that people would vote for some sort of intermediary organization which in turn would nominate people for certain seats on the board. I am skeptical of that ever working too. I don’t see how that is going to work.

Q: In terms of the election process or in terms of what the board will do?

A: I just don’t think that the vast majority of people who use the internet will bother to vote or take part in anything. It’s just too costless to tune it out.

ICANN: ICANN’s Future

Q: Who has a stake in ICANN’s perpetuation?

A: The powers that be – the trademark owners, Hollywood studios, people that want to protect their trademarks, law firms that represent those clients, down the road others like copyright holders. There are a couple…As I said there are some consumer organizations, like the Markel Foundation, that are trying to work within the system to represent the average internet Joe. But again I am skeptical. I don’t see how that process works. The thing about – I used to have a professor at college who I once asked and this was twenty years ago…At that time there were just interactive T.V. experiments and I can remember into him at the end of a political science lecture and I said, “Soon everyone will be voting by pushing a button on top of the T.V. Isn’t that a great thing.” He said, “That would be a terrible thing because citizenship implies more than just voting. It is taking an active part in the affairs of the place you live.” That’s the problem with ICANN. You need more than just a way to get some people to vote. You need some sort of way for people to take part their own affairs and I don’t see how ICANN could do that.

Q: What’s the major obstacle to that? Is it that ICANN needs to be global and if it’s going to be participatory and global, it will never be efficient? Or is it a function of complex interests at home that aren’t going to allow it to succeed?

A: I guess, the structure of ICANN. It is a not for profit corporation. I believe it is a non-voting, not for profit. The stockholders or the members of a not for profit don’t vote. It’s not voting. So you basically have a board that runs everything. The board by their own grace and favor will set up a system where they are elected, but there are no voting members. I don’t think they’ve changed the incorporation papers to make it a voting thing. Even if it were a voting, not for profit, that’s not a government. That’s not a governing system to me. A not for profit? I am not sure there’s going to be any centralized thing, a global institution that runs everything. I have an open mind. I don’t know what is going to happen. But I don’t think ICANN is going to last very long.

Q: What will bring it down?

A: At one point, they are going to try to do something that is a little bit too much. The people who don’t like it wil complain to Congress or the Commerce Department or in other countries and they’ll just kill it or take away it’s powers. What they’ve done is very little and it’s not even on everyone’s radar screen. Law students are following it and certain reporters but my parents don’t know about it. What have they done? They have an arbitration system for domain names and I think that is it. Now they want to introduce some top level domains…but that is really nothing. They would argue that we’re not supposed to do anything. Everyone has it wrong. We’re just a technical [group] that works out the domain name system. Everybody who is crying…well, we’re really not. If they do very little minor things, I think they’ll last. If they do big things like what you’d expect a government would do, they won’t last.

CONSENSUS: Does Consensus Limit ICANN’s Authority?

Q: It sounds a little bit like you are in agreement with ICANN’s argument about the way consensus works to check what they can do – that, as you say, if they do something that really oversteps what people think is appropriate for them, it will all fall apart. Is that right?

A: Well, that happened with the tax. Possibly. I do think that if they did anything large, the rug would be pulled out from under them. But I don’t see them as…when I think of internet governance, I don’t think about ICANN. I think about this crazy quilt…what are the rules on the net? Various court decisions, to me. There’s no real laws at this point. There’s no global organization doing anything. The World Trade Organization. I think some of the ICANN stuff and some of the U.S. laws are in harmonization with W.T.O. laws, but there’s nothing really…there’s nothing. That’s what I keep getting back to. I think what we are seeing is that the early part of the internet is just very chaotic.

CONSENSUS: Defining Consensus

Q: Let’s go back to that consensus idea for a second. When you hear people in ICANN talking about consensus, what do you understand them as meaning?

A: What are they saying? I don’t follow it that closely.

Q: Well that they take decisions by consensus….

A: Whose consensus? That kind of bubbles up through these supporting organizations? Well, what decisions are you referring to?

Q: For example, the Uniform Dispute Resolution Policy.

A: Well, I don’t know.

CONSENSUS: Is Consensus the Right Standard?

Q: They say we don’t have a voting mechanism. We do this all by consensus and consensus grows out the technical origins of all of this, that it’s the way technical groups have always taken decisions. Do you think that’s an appropriate standard to be using in questions that look like they are becoming increasingly political?

A: I don’t know what they mean by consensus. Who do they sound out to get a consensus from? My personal opinion? I don’t like the idea of ICANN. I don’t like the idea of a not for profit corporation making decisions, delegated by the Commerce Department to make decisions about anything involving the internet because I think they are without accountability.

ICANN: Can ICANN be Fixed?

Q: Is there any way to introduce accountability without totally scrapping ICANN and starting over?

A: You have this indirect accountability. When they go too far, grand-standing politicians will have a hearing, then ICANN will pull back. That’s what happened with the taxes but I wouldn’t really call that accountability. It’s indirect. Maybe the next time they won’t pull back but they’ll be emboldened. Who knows? There’s no accountability. They don’t represent – I don’t think they can represent or I am not convinced that they can represent the average internet user. I think that there is just naturally a danger that they will sway towards the branches that lend them money or give them money.

Q: Would you agree that there is a need for some centralized administrative authority for assigning domain names and IP addresses?

A: I guess so. There always has been one. I guess so. I guess I am an old liberal but I would prefer it to be run out of the Department of Commerce where there’s more accountability. But my way was rejected because when they tried to do that, nothing happened. There’s was gridlock. Congress and the government weren’t capable of doing anything. So they dropped it off on this not for profit. Ideally, I would like to see it more in the government. I am not even sure why it is within their powers or interests to have an arbitration system.

Q: Do you think keeping this within the U.S. government is appropriate given the international character of the internet?

A: You mean domain names?

GOVERNANCE: What is the Right Model?

Q: Yes. Or would a treaty organization be a better model?

A: Probably a treaty organization. I just don’t like the idea of a private non-profit setting rules governing, without political accountability and without the involvement of the average internet user. Probably the better way to go would be a political system, like part of the Commerce Department or part of the United Nations. But that is not practical, that is not going to happen. Ideally, that should happen. My call – and we’ll see if I am right in five years – is that I don’t think ICANN will be around very long.

Q: Do you think it is problematic that, given what ICANN has the authority to do, that so many people seem to know nothing about this debate?

A: You mean the average person?

Q: Yes, the average internet user. Someone who would say in response to hearing the term ICANN, ‘you can what…?’

A: They’re not sure about a lot of things. There are also a lot of things about government people don’t follow. But it’s new. [tape corrupted] It’s a my eyes glaze over story. The average person can’t really follow it. It’s just too new and too arcane. But that doesn’t really mean anything.

THE INTERNET

Q: What do you think the internet’s greatest promise is?

A: I think the global nature of the internet. It’s something that I am always reminded about as a journalist. When I write a story and I get emails from readers, frequently some of my email comes from people in Australia, Germany or India. It’s just unbelievable. I used to work for a newspaper and I never got letters from readers – anywhere. Forget about foreign letters. So I am always reminded that this is really global. Sometimes because I write about legal issues, so I hear from lawyers in Germany saying you should write about this story here. It’s just my personal feeling – and this is a cliche – it really is a global thing. My personal feedback is global. I write emails to these people who write me. I think that is its biggest promise. Somehow it will bring people together in ways that haven’t happened before. Governments have had these types of connections but people never have. That’s really important. That’s really unbelievable.

Q: Do you think there is anything ICANN can do today that would damage that?

A: Sure. They could put a chokehold on things. They are in a position to indirectly enforce their policy by saying if you want a domain name or a license, you have to meet X, Y, and Z conditions and one of the conditions might be you have to follow ICANN’s rules. I don’t think they will do that but they could do that.

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