The Debate Over Internet Governance: Jamie Love

A: It's a means of communication, it permits people to communicate, network, publish. I think the non-commercial aspects of the internet are what makes it important. Don't you agree? …

PERSONAL BACKGROUND IN INTERNET ISSUES

Q: It might be helpful to start with a little background about how it is you got to be involved in the debate about ICANN.

A: I mean, people have been contacting us for a couple of years. I don't know how long this has been going on, but ever since the initial Green Paper, White Paper process people have been asking us to get involved in the DNS issue. And we tried to avoid it as much as possible hoping that it wouldn't get too screwed up.

GOVERNANCE: Is ICANN Governance?

Q: "Too screwed up" meaning?

A: Well, I think that if you look at what the … if you look at what was done with ICANN, the way it's been kind of formulated, initially the idea was there were some technical issues having to do with managing the domain registration process. I mean there were some decisions that had some policy consequences, but the idea that ICANN would be some sort of basis for some new almost world-government type, that it would sort of be the foundation for other types of policy-making in cyberspace was not really something that that people were thinking about back then. I mean, you knew there was this bearded guy named Jon Postel and you just sort of assumed that when they set up the new thing that he'd probably be running the damn thing. And you know and then a lot of other people they're looking at the internet trying to figure out how they can somehow benefit from some of the success of the internet. And people … liked him at one level, but there was a little concern that he had a hard time keeping the difference between him as a person and the job he was doing straight all the time. Like that time he kind of shifted everything over to his personal computer.

Q: Right. In your opinion has ICANN become a kind of world governance structure?

A: Well, it's a long ways from being something like that now. What's troubling is that the aspirations of the people involved with it now are clearly trying to make this a magnet for various agendas that people have. Now, of course if I was the king of ICANN I would think that that was just great because then I have my own agendas and I would use ICANN to carry those out. But, you know, it's not going to be me, it's not going to be people like me either. It's going to be people that are pretty closely established with e-commerce firms and things like that. … It's going to be a change over time to. If you look at the parties that are jockeying for position in the ICANN process and spending a lot of money going to the meetings and things like that, they are things like music publishers, trademark owners, intellectual property owners. My guess is that the first wave will be focused on the intellectual property issues. And they'll try and use ICANN to, and you already see it, to do things to make the internet safe for intellectual property owners.

I was at a meeting recently in Washington, D.C. with Andy Pincus, the general counsel of the Department of Commerce, and also with Mozelle Thompson from the FTC, and both of them said in independent conversations before the transatlantic consumer dialogue, they said that they had pushed ICANN to provide the true identity of owners of web pages though the "who is" system, that that was a strong position that they had taken and you know you observe from the comments by Steve Metalitz and people like that it's a big priority for IP owners … to use that to enforce liability issues. And there have been a lot of complaints they've had that there have been domains registered by people like Mickey Mouse or things like that and phony addresses and things like that and they were trying to stop that from happening. And so there … [are] obviously privacy issues associated with these kind of things, and I'm sure there's legitimate interests [about] people that are abusing publishers and other IP owners.

I think the thing that's kind of troubling about it is that the policy-making is being made essentially by a private body on things that involve kind of fundamental issues about anonymous speech, privacy, intellectual property rights, things like that. So then one expects a continuation of this thing. And you could say the same thing about trademark issues. And then the question is what next? Does ICANN then become an instrument to promote deeper forms of surveillance in terms of what people do on the internet in order to make sure that nobody who owns intellectual property is getting ripped off or something? And maybe you'd have the same problems if government ran it. Don't get me wrong, I mean government tends to be pretty responsive to those interests as well.

THE FUTURE: What Will the Internet Look Like in 10 Years?

Q: Look 10 years into the future and assume things kind of develop from where they are today without any radical change. Where would we end up?

A: Well, I think it's kind of hard to tell. I don't have a crystal ball and when I get involved in issues I usually get involved in issues because I think I can influence the outcome in the future. I assume other people can too, so I'm not a determinist in things. I don't think it's even knowable what the future will be 10 years down the road because I think we haven't seen people's reactions and strategies to things that might be attempted. But just to explain some of the problems we have, there's a whole bunch of cross-jurisdictional issues, and there's a lot of difficulty that governments have in reconciling differences in laws and all sorts of things. For example, registration of securities which are typically based on national laws having to do with disclosure. Disclosures that have to be done with marking pharmaceutical drugs based on national laws. There's, as you know, all kinds of state laws now on the regulation of spam, not to mention foreign laws. There's things like pornography and gambling and things that get people all riled up. … And there [are] issues about liability and so there's a whole difficulty in the internet reconciling differences in national law on a wide range of issues. So it challenges the whole political system to think about how you might come up with a global way of making laws. And then an alternative thing was just to privatize the whole law-making business, to create a private sector institution that would essentially do the law-making. Not in a democratic way as we're used to it, but just run by, say, what's good for business. And then that would be an alternative and it would be a compelling alternative to us because it would be dynamic, it would be acting, it would be out front, it would have under its control the mechanisms to enforce decisions which are just not available to anyone else.

So that's kind of how ICANN fits into it. For example, I'm going to a meeting with the FTC tomorrow about the Hague convention on private judgments and there's some proposal that's come up in the context of these negotiations that countries can escape a country of destination role on terms of e-commerce and they can abide by some standards for consumer convention that are certified by somebody and they can then sort of adopt a supranational jurisdiction by having a little emblem that says "okay I abide by this set of, not really government rules, but some kind of cyberspace rules that everybody agrees or accepts. An equivalent of a safe harbor kind of deal where you take voluntary actions in the privacy area and use them to exempt from national regulations and obligations you might have. This would be for a lot of consumer protection type issues. Now, there's going to be similar things like that. There's an issue about how you deal with spam. I think people are beginning to recognize that it doesn't make too much sense for Michigan, Colorado, Virginia, Washington state … to all have different rules about spam. And so if there's no will within the government to confront the difficulty in reconciling the differences or in creating institutions which can create global norms, then you just sort of turn everything over to ICANN and say well you have the power, you have the ability to tax people, you can spend whatever it takes to … generat[e] the consensus on these issues, and you become essentially the substitute for government.

You sort of see how that's coming, right? It's sort of a mission creep, and a lot of times you know the complaints seem kind of weird because you're not really complaining about specific decisions that are made necessarily, or even suggesting that they'll even make the wrong decisions necessarily, although they might, you know, on particular things they will do in the future. You just don't know. And you can't really predict, that at least in the short run, they'll make bad decisions. I mean , my guess is that in the short run they'll make decisions which are not unreasonable.

ICANN: The Devil Theory of ICANN

Suppose you had the devil theory about ICANN, which I don't. But if you did have the devil theory, it would even make sense for them to make decisions that are not really bad decisions in the beginning because you want to go through a process of consolidating the authority and power of the organization and avoiding oversight and things like that. So in the beginning you want to essentially, you know, get out there and lock people in through various types of contractual agreements and technological means and things like that to the point where you really are kind of indispensable. And you've more or less rid yourself of things like memoranda of understanding and shit like that. At that point, then you're really in a position to be more independent from the powers that be because you've become one of the powers that be.

THE FUTURE: Where Would You Like to See the Debate?

Q: Now looking forward 10 years from now, where would you like to see the debate? What influence would you like to exert on what's happening?

A: Well, I don't know if you've seen the resolution that was passed by the Trans-Atlantic Consumer Dialogue, but a fundamental issue for us and ICANN is whether or not there's any consensus that the function should be limited to ICANN. That it should be limited to DNS type services or some fairly technical firewall or bright line or whatever people call it.

ICANN: “Mission Creep”

Q: As opposed to adding what kinds of things?

A: I think what's anticipated will just be this incremental mission creep in the agency, and so in order to stop that you'd have to some legal mechanisms to stop that. Now, the governments could put into effect something that would stop that, that would declare, "No, you can't do anything. You can only do the following and if you get beyond that you're exceeding your authority." The problem people have, I guess, is that they figure if they get the government to create a limit, then the government could actually begin to exercise other types of unwanted attention on the DNS system. So ICANN says, yeah, giving it to IBM and Microsoft and music publishers and things like that and Time-Warner, that's actually better than giving it to the government because we don't care about dirty pictures or things like that so there's that kind of dynamic that you can trust the private sector not to do certain things that you couldn't trust the government to do. You know, implement government snooping technologies or God knows what. Given some of the actions you've had in some national governments, you know it's not an unreasonable argument for somebody to make. We don't really go along with it. But you know I can understand that some people would.

ICANN: Limits on ICANN’s Authority

Q: What kind of limits do you see on ICANN's policy-making decisions?

A: Well, I think that they should operate under a charter, a legal charter. We proposed a sui generis charter that other countries could join. And the countries that could join were countries that essentially agree with the basic idea that ICANN would not be the foundation for broad regulatory authority. It may not be that there's a consensus there, so maybe we couldn't succeed in terms of that proposal. But our idea was that the internet is a global thing and that the U.S. should declare that … I mean it's ludicrous. You talk about people spending a million dollars on an election and claim they're not a government. It's pretty weird, you know, the whole thing.

Q: What was that about spending a million dollars?

A: Well Markel is spending a million bucks to try and deal with the election of the board members and things like that. I mean it's pretty bizarre if you think about it. You can't get something like the North American Numbering Authority for telephone numbers, or something like that; whatever it's called. I mean that's, in my mind, what the model should be. Just some technical thing run by bureaucrats, where nobody even really knows who they are and never has to worry about who they are. It shouldn't be the case that you really would care that much who the ICANN board members are. It's not as if NPAA lobbies really hard to get their person to allocate phone numbers in North America. But for some reason they think that there's something else going on with ICANN, and I think they're probably right. So I think people just need to be, in part, a bit more honest about what's going on with ICANN. It's not just about some technical thing.

ICANN: Fear of Capture

Q: How real is the fear of any organization like ICANN being captured by big, multinational, economic players?

A: I think it's already influenced quite a bit by big firms. I don't think they've quite figured out what their common interests are on things. But I'll just give you some basic ideas on things. … I'm going to go to the Cairo meeting. The Ford Foundation gave us funding to go. On our own nickel we've been to the last couple of meetings including the Santiago meeting and the L.A. meeting. Suppose we come in and we propose, that we'd like as a condition of a dot com address that companies have to post the privacy policy on the web page and some basic information to consumers which are similar to what has been recommended by the Trans-Atlantic Consumer Dialogue. Some basic stuff like where the business is located - this is for businesses, not for other kinds of things. … We'll just take the privacy policy, just sort of a simple one because I think it's a bit of a no-brainer that businesses, most people believe, should be obligated to post privacy policies.

Now, we raised this with Esther Dyson, and she said well no, that would never go through. And I said well why not if we ran the pro-privacy slate of people for the ICANN board of directors? And she said at best you can get less than half the board members because the way it's set up about half will be controlled by business firms through the constituency set up. So there it was right there. And she said - and this was a meeting with me and Ralph Nader and John Richard -that's actually a positive thing she said, nobody should have that much influence. Well, it's set up right now so any kind of pro-consumer thing we might push would not succeed because businesses could block it. Then the question is could we block something they wanted to do? And the answer is no. So it's not really symmetric.

Q: Why numerically is it that you can't block them?

A: Well, to begin with, there's nobody that's been elected yet from the general membership. So there's zero right now. And then even if you have an election there, it would really be hard to get 100% for just about anything [with] the way they've set it up. My guess is they're going through a process right now where they're trying to make it as … I mean one simple way to do it is to make it that if you own a domain name you could vote. Because even though that's not ideal, at least you've got a system where you can identify people and people have indicated an interest in the thing. They've paid their money to get a domain name and they're fairly expensive. So you have some system and it's a pretty big population. They're not doing that. Who knows, God knows what they're doing. But we'll have to wait and see. But it's being designed in such a way through this complicated governance structure, that that'll be hard to do. That's my prediction. Maybe you have a different prediction than I do, but that's just the way I see it.

Q: How do you respond to the argument that all of what you've just described about how decisions get made and how the deck is stacked against certain interests in favor of other interests in this kind of decision making … really is a more fundamental problem. It doesn't just affect institutions like ICANN but is really a feature of our political system. So talking about fixing ICANN is not really the right place to start.

A: I think it's totally untrue because with ICANN, it's this private sector thing and you don't have any reviews through the normal democratic processes. I mean if things get screwed up in ICANN, you're just fucked. They could change the bylaws tomorrow with enough of a majority - or at any given time - and they could take away whatever accountability they have to the public that's built in right now. That's just something they could take away. Look at the history of non-profit organizations; the whole S&L crisis. A lot of those S&Ls used to be non-profit institutions at one time. And they were just privatized. And same with Blue Cross. Remember the old days when Blue Cross was a non-profit organization? Until fairly recently the Blue Cross organizations in states were non-profit institutions. Then they were privatized. So you could even go from a non-profit to a profit-making organization. Not that it would; and not that it wouldn't either. I mean, you just never know. You don't really know where you're going, but if you have a bunch of businesses that are sort of focused on ICANN as something to protect their intellectual property, what are the odds that we can get it [ICANN] to do anything? So it's essentially going to be an instrument against consumers, not for consumers. So basically, that's how it's going to be used.

ICANN: Limits on ICANN’s Authority

Q: How do you then react to ICANN's position that they don't really have free ruling authority to change the bylaws and do all these things?

A: Geewhiz. Do they think I'm just lying about this or something?

Q: No. This is just what they say: that they're constrained by …

A: They're constrained by what? They have to get enough votes to change something, right? I worked for non-profit organizations for 30 years, so I guess I'm just a little skeptical of the idea that it's difficult to change the bylaws of a non-profit organization.

THE INTERNET: Defining the “World Internet Community”

Q: What they seem to say is that the ultimate check on what they can and can't do is the need to keep the consensus of the world internet community on-board.

A: The world internet community? Which means who? I mean I use the internet, am I'm part of the world internet community? Is my mother part of the world internet community? She uses the internet. What do you have to do to be part of the internet community? That's the most bogus phrase there is when you think about it. What does it mean? Is it sort of the old boy on girl network? Is that what they're really trying to say? The world internet community? Is that Steve Metalitz at NPAA? Is that some of these guys who are running for the board that don't know how to use anything but America Online to check their e-mail? What the hell are you talking about? "The internet community"? That one really cracks me up. Does that mean people that are in one of Esther Dyson's venture capital things or something like that? Is that what people think? That the dot com meaning is essentially what the internet is all about? What does it mean to say "the internet community"? That's the stupidest phrase. I know people use it all the time but what does it mean? People who think like they do?

Q: Well that's a fair question. Whose voices should be represented?

A: Well whose people are represented in telecommunications policy? Obviously, … regulated industries tend to be really well represented, or … the business interests tend to have a big presence, but ultimately, in theory, you can appeal or write to your member of Congress. There is some accountability of the government at some level. I mean what this is about is eliminating that step. So you have to lobby IBM if you want to get a change. I mean it may make you feel pretty good. It doesn't make me feel very good at all.

ICANN: Love and Nader Letter to Dyson

Q: I have a specific question about the letter you sent to Esther Dyson (June 11, 1999).

A: The one pager?

Q: Yes. It's co-signed by you and Ralph Nader. She responded on June 15, 1999.

ICANN: ICANN & the WTO - A Comparison

A: Yeah. Her response was pretty silly, I thought. It was some sort of attack on NSI, as if somehow we were too dumb to figure out that there was a problem with NSI. But that's not the point. I mean, they've gotten a lot of mileage out of NSI being kind of an evil body. … I guess something good comes out of it to see them beating up on NSI, but that wasn't really the point. The point wasn't, was NSI ripping people off? The point was what kind of institution are we creating to control the internet, at least in my opinion. I mean NSI, … I think people understood what NSI was. It's like Bell Atlantic. Well, I compare it to ... the difference between the WTO and Bell Atlantic. I mean, which group has a bigger budget, the WTO or Bell Atlantic? I would say … Do you know what the WTO is?

Q: Yes.

A: The World Trade Organization. They have a very small, … not really very high salaries compared to I guess what you think it might be. They have a dedicated small band of civil servants. I think they have a total of five people working in intellectual property for the whole world. It's a relatively lightweight organization and they have … It's non-profit. Bell Atlantic's profit. NSI's a monopoly like the phone company. People complains about the prices they charge. Nobody complains about the prices WTO charges because the WTO doesn't charge any prices. They just essentially determine what the rules are in international trade. The problem that people have with the WTO, or that some people have, is they feel that the whole process of decision-making at WTO is less transparent than government actions. And they feel that you sort of get locked into the WTO system and you can't really do much about it. It becomes harder and harder for people to change things because it's such a difficult procedure.

At some level, I guess, it's everything has an authority at some level. But I mean I participate in a lot of WTO events and there's a lot of things that we think are good at the WTO. … We work in areas where we use their norms in intellectual property to help developing countries resist bullying by developed countries because the rules are relatively reasonable in a lot of areas. But the fact remains that it's this sort of … the potential's there and an environment you're beginning to see right now where it makes decisions and you're kind of stuck with them. It's almost like changing history. It's really hard to do; you can't undo things at the WTO because anyone can block changes through the consensus system. And they have these judges making decisions through secret briefs and it's totally non-transparent. And you can't even get copies of the pleadings. [There's] no guaranteed right to submit amicus briefs, or anything like that. It's a weird, weird ass thing. So people focus a lot on the WTO, on the governance issues and whether or not they want that power, or if they're comfortable with the way that decisions are made or whether they think there should be additional accountability.

Well, ICANN is less accountable by far, in terms of how it's being designed, than the WTO is. I mean at least at WTO … if we want to get change in the WTO, and in fact we do this, we actually talk to governments. We're talking right now to the French, the Norwegians, the Australians, the South Africans, the Thai, … the Pakistanis, … [about] different changes we want to see in negotiations with WTO. I mean, it's pretty hard to do, but in some ways it's easier than dealing with ICANN. See because there's some process, there's some political process. … Governments tend to have a broader set of interests than big companies do, big profit-making companies do. I mean, what do we do, lobby Disney? I don't want to do that. I don't know anybody that does.

So it just goes to the issue of whether or not you think government should be privatized. Now maybe some people think government's bad because it's corrupt, and therefore, the market's better. So if you had some process that's controlled by successful businesses, that that's cool, and, you know, it'll do a better job. And maybe people are so disappointed with the outcome of the democratic system, maybe they think that … You know, they used to call this fascism in the old days. The idea that you'd just have big successful businesses … [and] you wouldn't deal with democratic institutions. That was kind of not that dissimilar from… Wasn't that kind of not that dissimilar than some of the ideas about fascism? I mean that used to actually have a respectable following in this country at one time. People used to feel that democratic institutions were a failures and they were just weak and that fascist systems, authoritarian … close relationship with businesses and lots of premium on good leadership quality, and things like that were actually superior because make the trains run on time, they could get people back to work, they can solve problems that government seem kind of paralyzed to deal with. So you know there have been period in history where people have had kind of a romance with fascist identities and they found them kind of appealing. Then they go through a period where they sort of say, well maybe that wasn't such a good idea after all. Who knows, maybe if they hadn't been so intent on killing Jews or something like that, maybe they wouldn't have had such a bad reputation today. Maybe if you avoid those kind of policies, maybe you can sort of get a better mandate.

ICANN: The Worst ICANN Can Do

Q: What do you think is the greatest harm ICANN can do to consumer interests?

A: I think in the short run it's primarily issues about privacy. I think … every time you think about something that ICANN's up to, the most advanced, mature issues are those having to do with privacy. One issue is issues of anonymity, in terms of web pages, and the degree that you can be anonymous or escape liability in various ways. Another issue has to do with what's happening with protocols. You know, there's various things kicking around having to do with ways that they work on protocol development. Everything from cookies to identification of ethernet addresses and things like that. There's various things that are going on, and you know there's a lot of problems with the net where it's nice to track who sent what, when, and you know get the bad guys. And it's not necessarily being implemented in a way which is least restrictive of privacy interests. And so I think that's the biggest threat. What do you think the biggest threat is?

Q: Hard to say.

A: What would be higher than privacy, in terms of the short run?

Q: Well, I don't know. The more generalized threat is that a lot of decisions will have long term effects and are being taken without people having any idea as to what's going on.

A: Your question was a legitimate one, which is, "So what?"

Q: Well, we're going to live with the architecture that's put in place and it may be much harder to undo it than it is for ICANN to do it. And that's going to affect a wide range of issues from privacy to intellectual property to everything else. …

GOVERNANCE: Defining Governance

Q: Define governance.

A: There's who governs ICANN, and then there's what authority does ICANN have over the internet. Those are kind of two different issues. Let me put it this way, suppose ICANN had no authority over the internet. Then I wouldn't really care who has authority over ICANN. … But to the degree that ICANN asserts that it has big authority over the internet, then I go, "well, gee, not only do I care, I care that other people care." I mean, it's not so much that I have big plans for ICANN in terms of things on the internet, but if I sort of get wind of the fact that other people have big plans for ICANN. … I mean it's maddening to deal with Esther because Esther's charming. … But she's kind of a bullshit artist. I mean if you listen to her, none of the things she says really makes too much sense if you put them all together. I mean, she's accused me at public meetings of lying about things that she told me. Which, they weren't lies at all. It's just she didn't like them played back to her. I mean she wants to be able to meet with everybody and say whatever glib, cool things she can say to calm everybody down, but she doesn't like the idea that you could ever pin her down on anything. She's like a jellyfish. Or I don't know what. But she can't really, I don't think she really has the intellectual honesty or maybe the intellectual ability to sort of sit down and figure out what's being done as far as an institution. I mean either she's just intentionally kind of a propaganda artist or she just can't quite get it in terms of what's involved. And, you know, I think we'd be better of if we had somebody who was not so glib and just confusing everybody. She takes advantage of the fact that a lot of the people she deals with in government are clueless when it comes to the internet, so you know she just makes them feel so uncomfortable that they can't really pin her … nail anything down. It's amazing how difficult it is to get real basic information.

ICANN: Temporal Scope of Authority

When we were at the Trans-Atlantic Consumer Dialogue meeting, Andy Pincus was there and so was Becky and so I asked a question. I said, "well, can you tell me when, if ever, the U.S. government intends to end its MoU with ICANN? I mean, does that thing ever sunset or is it a permanent thing?" It's a pretty basic question, right? I mean, who gives a shit what the Memorandum of Understanding is if it's going to disappear after a while? Well, we couldn't get an answer. Not that there wasn't an attempt to get an answer but they just wouldn't give us a straight answer on that issue. That was like a pretty basic question I think, isn't it. Because what Esther told me is they intend to be a free agent and she wouldn't accept an arrangement whereby they have an on-going relationship with any government. They want all the assets, all the power, and they want us to just kiss it off and just say okay, you're free. She wouldn't accept the notion of a charter. That's what she told us. And so we went back to Andy Pincus, Tim Mazel and those guys, but primarily this was a meeting where Andy and Becky were there in front of a lot of other people and we just said tell us, is there ever going to be a day when they're no longer obligated to any of the terms of the Memorandum of Understanding, which is what Esther told us would be the case. Do you know the answer to that?

Q: No.

A: Doesn't that seem like a fundamental, basic issue?

Q: Yes.

A: It does to me, anyhow.

GOVERNANCE: Does the Internet Need Formal Governance?

Q: Do you think a formal governance structure is necessary for the internet?

A: A formal governance structure for the internet? I think that would be a mistake. I think that to the degree it would centralize power on the internet it would be a big mistake. I think it's much better to have less centralization. If you look at one of the concerns people have about the WTO, it's that kind of one-stop shopping real power. Of all the international organizations, the only one that has any power is the WTO. And I think that's sort of the analogous thing with ICANN. I mean there's lots of institutions which may sit around and shoot the shit, but I mean ICANN has the ability to translate ideas into actions … same with the WTO.

ICANN: Limits on ICANN’s Authority

Q: What kind of sanctions does ICANN have available at the moment?

A: Well, I mean they can require that you abide by their … I mean companies like NSI have to follow their procedures on license and domain. For example, …. this is the first one, they can say that if you don't give … Okay they have a policy on identifying who a person is that has a web page and what they're trying to do now is say that if a person does give over that information, they can't have a web page. We're going to take it away from him. They can't have the IP number, they can't have the domain assigned to them. So that's a condition. And you know they're working in the same direction in terms of trademark issues, too. So on privacy and trademark, they're pushing in the direction of saying "you can't have something" … if you don't abide by our policy. The anti-privacy things are being essentially promoted as things for law enforcement authorities and for IP owners right now. I think the IP thing is probably the bigger of the two, but it really goes to both.