Formal Governance Necessary?
is the Right Model?
Values does ICANN Serve?
on ICANN’s Authority
Policy or Technical Management?
Consensus the Right Standard?
note that this transcript has been edited and redacted according
to the author’s request.
We were looking over some of your responses to the initial sample
questions and we wanted to follow up on those and ask you a
couple more general questions on governance. We’ll just start with some broader questions.
What do you think the internet’s greatest promise is?
Well, that is a question with a lot of dimensions.
Let me give you the short version.
I think the combination of very
powerful networks and very powerful computers with a lot of
our software intelligence built into them gives us the opportunity
to leverage human society and work and almost everything that
we do and mostly for the better. By no means entirely for the better, but mostly
for the better. So I
see it as a new – in terms of man and his tools – as a new kind
of tool with a great deal more power because we are able to
put our own intellect into the system in the form of software.
What do you think is the best way to realize that promise?
M y own personal view about that is that the manner in which
we have been doing things approximates the best course and speed
to be on. When you have something that is both a technical
and a political, economic and social phenomenon of the extent
to which the internet is, you’re never going to be entirely
sure that you know where you are.
But I firmly believe that one has to be cautious about
saying that just because we’ve done such and such in one way
over the last period of time that we should keep doing it that
way in the future. The
correct attitude towards the internet is one in which we nurture
it on a basis of the values that have already been so successful.
Is Formal Governance Necessary?
I think I asked you this briefly in one of the other emails
and we haven’t had a chance to pursue this point but…a formal
governance structure. Is that necessary for the internet? I believe you said no. Is that correct?
Well, I am qualifying what I am about to say because I think
I referred to this in the email and that is that the question
of governance requires you to go back to first principles and
try to analyze what you mean by the term. It means a lot of different things to a lot
of different people. It
means one thing to people like Larry Lessig in his book about
code and constitutional freedoms and so on.
It means other things, for instance, to somebody in the
computer industry who is worried about constraints on the freedom
of his company to develop new products and services. If you mean the question to be does the internet
need some quasi-legally constituted body that would have the
power to, would have some version of the power which conventional
governments have to take coercive steps controlling citizen
behavior on behalf of the public interest, I don’t think there
is any evidence that we need that in the internet today.
Is ICANN Governance?
For the purposes of people working within the ICANN organization,
how would you describe the operative understanding of the word
governance? What does it mean to you?
We, both the board members and the staff people, have said repeatedly
that we don’t have any mandate for governance and nothing we
do attempts to exercise any such mandate.
Then what is your mandate?
It seems to me that is a semantic distinction that is
not particularly meaningful.
The number one problem we have in this area is that people keep
trying to reinterpret the government’s White Paper according
to their own premises. We take the White Paper and our contract with
the U.S. government very literally at exactly what the words
say. What the words say is technical management of the domain name system and then
it fills in some details underneath that and it injects a transition
period for our taking responsibility for the various aspects.
But doesn’t it, doesn’t holding to that line conflict with your
recognition that what we’ve got with the internet is a technical,
political, economic and social phenomenon on a scale that perhaps
we’ve never seen before? It seems to me that what you just said doesn’t
really recognize where we started with you.
No. What you said is quite consistent with what I said. Namely, we don’t believe that our charter deals with those broader
issues. We don’t see
the intersection of what we’ve been asked to do in managing
and administering the domain name system with those other things.
Public Policy or Technical Management?
So you’re saying that technical decisions made about the domain
name system and all the things that flow from that – from uniform
dispute resolution to trademark questions – that none of that
has anything to do with broader policy questions that will shape
the political, economic, social, et cetera impact of the internet?
At some level, everything is connected to everything else. Certainly as I said to you in the email, I
don’t see anything beginning to approach what a group of law
students would characterize as persuasive evidence of such a
thing. We don’t, for instance, have any direct connection to the enactment
of trademark law. Beyond that, going back to our charter, as
a U.S. non-profit corporation, we’re essentially, not entirely
but we’re essentially, prohibited from undertaking political
advocacy of any kind.
Q: Referring to your email, I think it is in response
to the first question ‘do we need a formal governance structure
at all?’, in your fourth paragraph you talk about the bottom
line, that we as students need to ask ourselves ‘can we identify
a problem of sufficient importance that it would result in the
U.N. Security Council recommending to its 180 nation state members
that internet treaties be enacted, then wait ten to twenty years
for that to happen?’ That
sounded like a very reactive posture. Is that how we should be approaching these issues? Should we wait
for a problem to arise?
A: I think it is easy to be rhetorical about these things and
say that you think the internet might be a better place if there
were more formal governance institutions.
That’s fine. In fact, that level of aspiration or that level
of scrutiny about what is going on in the internet is completely
appropriate. On the
other hand, we’ve been subjected to a lot of off the wall complaints
that we’re not paying enough attention to being accountable
for governance issues. My reaction to that is ‘Hey look, the people who do multi-national
treaties are over on the East River in Manhattan. It’s called
the United Nations. If
you’re serious put your case together and go present it to the
U.N. Or convince one of the major political powers in the world that
they should make the case to the U.N.
That’s how this is done in the real world.’ No conceivable interpretation of what one U.S. federal agency has
done with a JPA MOU with us, without any legislative sanction
at all, could represent a mandate for governance on a multi-national
What is the Right Model?
Q: So you think the U.N. is a good starting point
or do you think that there should be another structure set up
independent of the U.N. to deal with these issues?
I noticed in another response that you made in your email,
in response to the question ‘how should the internet governance
structure be designed so that it accommodates the international
community of internet users?’, your response was ‘using existing
multi-national arrangements as a starting point.’
I take it the U.N. is one example of an existing arrangement
that could be used a the starting point.
If you go back to, I suppose, the twentieth century history
of these things, before the twentieth century, before the U.N.,
before the League of Nations, there were agreements among the
great powers like law of the sea treaties and maritime law,
which were useful for them to collaborate on because it avoided
people shooting at each other out in the ocean, but if you look
at the sixty, seventy-five years, when these multi-national
things have become of sufficient importance that everyone agreed
something needed to be done about them, it’s been pretty much
done within the structure of the League of Nations and the United
Nations. I suppose the
departure to that that you might look at – I don’t know if it
is relevant or not – is that over the last twenty years or so
the major economic powers have coordinated multi-national economic
policy without reference to the U.N. but I think that is partly
that they didn’t want what they considered to be the lesser
nations that didn’t belong at their table giving them advice
that they didn’t want.
Contract As Foundation
But is it a real distinction to rely on a contractual basis
for what ICANN is doing? You
could look at any national constitution and call that a contractual
basis for government.
There is the metaphorical or metaphysical contract - consent
of the governed - and then there are actual statutes that control
business transactions among parties, which is what I mean what
I say contract. If you look at the documents that have been executed by ICANN, the
contracts to which we have been a party, all of them have the
paraphernalia of state level contracts in the United States.
They have jurisdiction, all of the proper formats and
formulas that go with valid, legal contracts in the United States.
implies something that isn’t already part of an enacted legal
structure, in my mind. Or
at least in the sense – if you look at the Rhonda Hauben stuff,
she says ‘you guys are really engaged in unethical and immoral
conduct because you fail to recognize your responsibility to
make cyberspace a better place for humanity.’ Well, that’s her point of view and that’s certainly not what we’re
trying to do. Whether
or not it’s a valid point of view, we’re not trying to do that.
What Values Does ICANN Serve?
What is it you are trying to do then? What value do you most
want to serve? Is it
competition? Stability? Humanity?
A healthy growing internet that serves all parts of society. That’s the goal that those of us who have
been around the internet have, that’s the goal that is set out
in the White Paper.
What does that mean? All
of these things are conflicting – more competition may in time
mean less stability of the technical structure of the internet…Can
you be more specific than for it to be able to do what everyone
wants it to do?
When you have a wave of technological innovation, whether you
look at the telegraph, the railroad, the movies, radio, television,
you never know going into a new wave exactly how society is
going to be affected. You don’t know how it is going to play out. One of the things that bothers me about Larry’s
book is that he tries to make the case that the internet is
going to hell because somebody’s constitutional rights might
be infringed. If you go back thirty years ago and look at
television, we went through exactly the same scenario of a burst
of idealism and altruism at the new communications technology
and then decades of unhappiness that it didn’t turn out that
Let me repeat something that Joe Sims wrote in an exchange with
Jay Fenello. This is
just a short sentence. I don’t have the whole clip in front
of me. He wrote, “The
meta-goal of ICANN is stability, not global democracy.” Do you
agree with that?
There are four goals set out in the White Paper, of which stability
is the first that’s presented and is widely viewed by many people
as the most important. I don’t take a position myself on which ones
of the four are more or less important than the others.
Is it the Right Standard?
Q: As ICANN moves from purely technical questions,
as it did in the earliest forerunners of what is now ICANN,
and moves closer to questions that are clearly political in
nature, what do you make of retaining consensus as a decision
making tool? Is it too manipulable?
I’ve said a number of times that the jury is out about that. I think that the issue here is - regardless
of whether you take the liberal or conservative political view
- you have to ask yourself if the internet becomes
the primary information resource base for social and political
dialogue in human society on a global basis, is it conceivable
that a piece of the technical architecture and the administration
of that architecture can be left out of direct control of national
governments? I don’t think anybody knows the answer to that
went around the world in the winter of 98 before the White Paper
came out and he had a hot time of it because most of the major
countries felt that they should do a major economic power get
together and just decide on these things. He convinced them using the leverage of the
Clinton-Gore administration that they were better off to proceed
on a private sector basis.
It will be pretty easy to determine whether ICANN should
continue or not and the way that you’ll find that out is whether
as decisions are taken and policies are put in place the community
goes along with them or there are major defections.
Limits on ICANN’s Authority
It sounds as if the only legitimate review or check on ICANN’s
policies is the threat of defection.
Is there anything, any more formal structure by which
these questions and policies can be reviewed? If not, should
There was a lot of comment about that in the summer of 98 in
constructing our by-laws. As
among by-laws for non-profit technology oriented companies,
and I’ve started up several of those companies, these by-laws
have very extensive checks and balances in them for looking
at the judgment of the directors.
For one thing, there’s the creation of supporting organizations
which are given the presumptive power to make the primary recommendations
in the technical areas for which they are responsible. There’s the reconsideration provision in which any decision can
be challenged by anyone and the board is required to specifically
review such a challenge. Beyond
that, there’s the independent review provision which we’re almost
done with and which will create an external body to deliberate
on whether in any given situation the board violated its own
by-laws. There are very
few, if any, - in fact I’ve never seen or heard of another American
non-profit corporation - that has those structures associated
with double checking the judgment of the directors.
That doesn’t mean that the verdict over the next several
years will be that they are necessarily adequate but they certainly
are a substantial step up from any comparable model.