The Debate Over Internet Governance: Charles Nesson

A: … ICANN handles mainly the domain name registration system and it does seem to be engaged in formal governance. Yeah, it seems to me like a formal governance. It's trying to say that it's not governance because governance scares people; nobody wants the internet to be governed. But it's mainly deciding technical things. …

ICANN: Contract as Foundation

Q: When you think about ICANN and what kind of governance structure to decide these issues and you consider that it's basis is in contracts and Memorandums of Understandings and they're very careful to point out that it's not a legal structure, there's not a Constitution and there's not a free-standing legal body, it's purely contractual, like a corporation. Do you think that's a meaningful distinction?

A: Yes, in the sense that it's not run by any specific government or it's not the expression of any particular pre-existing governmental body. But it's success completely depends on how well it does, how well it performs, whether it can actually develop as a decisional structure that people think is legitimate in some way; legitimated by its actions.

ICANN: Defining ICANN’s Constituency

Q: What are ICANN's constituents?

A: Well, I think there are two categories. One are the stakeholders, and the other are the internet community at large which is not a well defined entity. It includes the future in some significant sense. So there are those people who, those interests that now have their mission tied up with how the business of ICANN gets done, and then there are those who are the beneficiaries of that.

ICANN: Who are the Stakeholders?

Q: Who are the stakeholders?

A: Well, I thought of them initially as the people who have gotten us to where we are now. The people who, the entities responsible for how the net is functioning now. And that's a lot of different kinds of people, but they're folks intended to be represented in the standing organizations. And the internet community at large is intended to be represented by the directors of ICANN who are to be at-large directors. How each of those constituencies is actually selected so that you come down to real people making real decisions is not obvious.

Q: How real do you think the threat of defection from either of those two groups really is?

A: I think it's significant. The question is can ICANN perform in such a way that it keeps those forces checked, so to speak. There are already lots of people, I think, who think that ICANN is a terrible idea and express themselves volubly that this is an unauthorized, illegitimate form of power grabbing.

CONSENSUS: Defining Consensus

Q: Define consensus.

A: As long as you don't require that it be defined to rigorously, the notion of consensus is one of approval by the bulk of people that are affected by your actions. Then that sounds like consensus. But when you try to express it in some digital way, like saying consensus means a certain percentage, or you have to vote, or… then the definition crumbles away. But to me, what they're saying about consensus is political legitimacy. Political legitimacy is exactly what [you] were more or less referring to: how does ICANN keep its balance in a world of forces that would like to see it toppled. It does it by keeping its balance with a consensus of people underneath it, forces underneath it. Now that's just political legitimacy for any entity.

THE INTERNET: What is the Internet’s Greatest Promise?

Q: What is the internet's greatest promise?

A: Promise in the sense that it's really going to happen or promise in the sense that it's a hope?

Q: Both.

A: Well I think it's hope is that it can finally reify "We" as in "We the People" at a level that is supranational. And to do it in a way that maintains distributive power, not concentrated power. Whether that's actually going to happen, it's like a contest between Leviathan and open spirit. The promise of open spirit is there but the lesson of history has been that … well, if it prevails too much, it somehow manages to get crushed. Leviathan seems pretty strong and I think that the danger is that Leviathan actually wipes it out, that the internet becomes a means by which some supranational government that is not distributed winds up controlling the space.

THE INTERNET: Preserving Open Spirit

Q: What steps can we take to preserve the open spirit?

A: The key steps for me have to do with establishing the Net as something that is bigger than any of its component parts. And doing it by investing individual people with enough power so that collectively it is strong enough to resist. So encryption, for instance, I think is extraordinarily powerful, important. The decision, will people have access to powerful encryption and be able to use it. I think once it gets established, it could survive. You see the battle at every point in it's way: will copyright continue to expand in ways that chew up the public domain, or will some balance get established where there really is a free body of knowledge that is openly accessible to people and where there's some dynamic process for having it grow.

GOVERNANCE: Reifying “We the People”

Q: Is it fair to impose the American ideal of "We the People" to the transnational internet?

A: I think it is. At least it seems fair to me. One way to think of it is that it's communism without nationalism. So far, Marx was an insightful fellow and others who studied the dynamic by which Leviathan operates, so far the only examples we've seen of it have been the establishment of collective action to take over governments, and once the government is taken over, so far nobody's figured out how to make it work right. But, the internet somehow offers the promise of a kind of "We" as in "We the People" that's not into governance. So for example, the Falun Gong, that's a We, where you have the sense of an entity of people who share some kind of commonality that espouses not to be governmental in its nature and you can imagine the internet being like that.

ICANN: Fear of Capture

Q: Do you think that there's anything in the path ICANN has set out for itself that's inconsistent with the getting to the idea of an internet community that's a bigger, supranational whole?

A: I don't myself see how ICANN is going to successfully represent the internet community at large. I don't see a mode of selection that is going to be possible w/o being vulnerable to capture.

Q: Capture by?

A: Capture by corporate interests. Capture by the kinds of interest politics that we see played out in our own political life. Captured by companies that are willing to invest in drumming up the votes to allow their interests to prevail and dominate. You get to a certain point, you control them.

Q: What kind of issues do you think ICANN needs to address to minimize the influence of ... [corporate interests]?

A: One of the issues seems to me to be whether they actually want to run the choice system on the basis of plebiscite. What is the voting mechanism? What is the nominating mechanism? What is the selection mechanism? The assumption so far has been that there'll be a slate of candidates and there'll be some kind of internet election where people on the internet will be able to vote and those votes will be it. So far I haven't been able to imagine that working in a way that it seems to me that it's likely to work.

ICANN: The Worst ICANN Can Do

Q: What do you see as the greatest possible damage ICANN can do to the hope you've described? ...

A: It could achieve it. It could take a while then fail which would be really the worst in a way. It could build up credibility and power and then lose it by capture, for example. Or it could flop right away before any big damage is done, and then we'll go on to something else. I guess the biggest danger is that it could entrench a structure of governance and then get taken over.

GOVERNANCE: Alternate Models of Governance

Q: ... What other types of governance structures could you envision? ...

A: No, I haven't got a great idea. I thought that it was a beautiful vision in its way and the challenge was whether it could be realized. It's not that I've got a better vision.

GOVERNANCE: Laws in Real Space vs. Laws in Cyberspace

Q: Is there a difference between laws in real space and laws in cyberspace?

A: I don't think so, no. I think that the challenge the internet poses is figuring out how you can get along without law, almost. It's like recognizing that law is a means of controlling behavior and that law in cyberspace is not the same as it is in an existing national empire where there's a structured authority head that delivers edicts and backs them with sanctions. In a way, the internet challenges people to figure out how to get along without having a single authority figure. So to somehow work in a more collective way that is actually expressed in the architecture of the internet. To me, … it's where we touch the future the clearest in terms of constitutional terms, development terms, the question of whether we can actually do something that would, will, be a structure that's lasting. It just seems like a very big and open question, that so far people are working on, but I don't have enormous confidence that it's going to come out to a great place in the end.

PERSONAL BACKGROUND IN INTERNET ISSUES

Q: Can you tell us about your background and how you got involved in internet issues?

A: My connection is largely just an expression of being a teacher and seeing a medium come into existence that potentially empowers teachers to reach much wider audiences, and an interest in wanting to use it for that. So, I don't know, … I'd say it's a combination of a political interest of thinking that this is the environment in which we're going to live in the future, and the issues of the environment are how do you maintain freedom and order and recognizing it calls for a new balance. It looks for something new. On the other hand I have an interest that's more mathematical in nature. That is, what we seem to be doing is very like a form of programming it's actually building structure. The combination of the two leaves this challenge of well how can you build this structure so that it preserves freedom and potentials for intimacy and diversity and all the things that we like to think of as part of freedom.

THE INTERNET: Achieving Its Promise

Q: You seem somewhat pessimistic when you discuss the likelihood that the internet will achieve the hope you've articulated. Is that based on the lessons of history or personal experience?

A: It's both. The history of each new medium … is that there's always the hope that this will deliver us and initially people are frightened of it and excited by it, but after a while it in some form turns out to be business as usual. I mean, what is this new form? Is the new form actually fundamentally different from the old form. You can certainly see that with the internet as a process that's apparently going on. … To me the question is how far will the process go of closing down the space? Here's the way I think about it: Cyberspace doesn't exist until you build it. It's not like Columbus discovers the Americas, and there are all these great riches there and you just have to exploit them. It literally doesn't exist until you construct it. And how you construct it has a great deal to do with what it's going to be like.

THE INTERNET: Open vs. Closed Architectures

There seem to be two basic architectures: one is an open architecture and one is closed. And classically, you can't really have one without the other. I don't believe that you can live in a completely open environment. It's like living in a desert; you need some place for shelter. But it also seems true that you can't live in a completely closed environment. If the whole world is closed, there's no air to breath or water to drink …. There's nothing free from which to be sheltered. So somehow, achieving a balance between open and closed seems to be the goal. The worry is that the forces of the closed societies and organisms - the corporate closed philosophy is capable of expressing itself in a way that actually takes over. So at this point I believe that industry is figuring out that almost everything having to do with information has value, and therefore the instinct is to make property out of it. But if you make property out of everything, then I think you've destroyed yourself. Where is the public space going to be in cyberspace? Where is it going to come from and who is going to maintain it? How is it going to be kept in balance with the private space?

The danger that I see is that so far the internet developed for a while as an open place, and then the commercial world discovered it. It's not quite an accurate account, but in some sense it gives you the flavor of it. Suddenly there's this huge inflation of the commercial part of the internet, with capital pouring into it. It's amazing; it's still continuing. But there's been no similar development of the public domain side of the internet. There's just been huge development of the dot com domain. And now that you look to the dot edu domain: it hasn't really developed that much and it almost looks as if it's going to start developing as a form of the dot com domain now. So what's there going to be left? When you look at the great domains of cyberspace, is the dot com domain going to eat the whole world up? I think it's possible; it's quite possible.

ICANN: Open or Closed?

Q: In the difference between an open and closed world, where do you put ICANN's trajectory? Whose interests does it represent? What is it fighting for? Where does ICANN fit on the open vs. closed continuum?

A: Well it's supposedly founded on open principles - the White Paper principles. And in spirit it's fighting for openness. But its task is to dance with the devil and see if it can succeed in making the dance an interest one.