After a slight delay, Jurimetrics has finally published my latest law review article, “Soft Law in U.S. ICT Sectors: Four Case Studies.” It is part of a major symposium that Arizona State University (ASU) Law School put together on “Governing Emerging Technologies Through Soft Law: Lessons For Artificial Intelligence” for the journal. I was 1 of 4 scholars invited to pen foundational essays for this symposium. Jurimetrics is a official publication of the American Bar Association’s Section of Science & Technology Law.
This report was a major undertaking that involved dozens of interviews, extensive historic research, several events and presentations, and then numerous revisions before the final product was released. The final PDF version of the journal article is attached.
Here is the abstract: Continue reading →
The Internet began as a U.S. military project. For two decades, the government restricted access to the network to government, academic, and other authorized non-commercial use. In 1989, the U.S. gave up control—it allowed private, commercial use of the Internet, a decision that allowed it to flourish and grow as few could imagine at the time.
Late Friday, the NTIA announced its intent to give up the last vestiges of its control over the Internet, the last real evidence that it began as a government experiment. Control of the Domain Name System’s (DNS’s) Root Zone File has remained with the agency despite the creation of ICANN in 1998 to perform the other high-level domain name functions, called the IANA functions.
The NTIA announcement is not a huge surprise. The U.S. government has always said it eventually planned to devolve IANA oversight, albeit with lapsed deadlines and changes of course along the way.
The U.S. giving up control over the Root Zone File is a step toward a world in which governments no longer assert oversight over the technology of communication. Just as freedom of the printing press was important to the founding generation in America, an unfettered Internet is essential to our right to unimpeded communication. I am heartened to see that the U.S. will not consider any proposal that involves IANA oversight by an intergovernmental body.
Relatedly, next month’s global multistakeholder meeting in Brazil will consider principles and roadmaps for the future of Internet governance. I have made two contributions to the meeting, a set of proposed high-level principles that would limit the involvement of governments in Internet governance to facilitating participation by their nationals, and a proposal to support experimentation in peer-to-peer domain name systems. I view these proposals as related: the first keeps governments away from Internet governance and the second provides a check against ICANN simply becoming another government in control of the Internet.
The forum has largely been overtaken by discussion of ICANN’s move to organize a new Internet governance coalition. ICANN representatives have had both open- and closed-door meetings to push the proposal, but there are still many questions that have not been adequately answered.
One important question is about the private discussions that have led to this. The I-stars came out at least nominally aligned on this issue, though there is speculation that they are not all totally unified. Over drinks, I mentioned to an ICANN board member that it rubs a lot of people in civil society the wrong way that the I-stars seem to have coordinated on this in private. He replied that I was probably assuming too much about the level of coordination. If that’s the case, then I wonder if we will hear more from the other I-stars about their level of support for ICANN’s machinations.
More basically, we still don’t know much about the Rio non-summit. It will be in Rio, it will be in May, there will be some sort of output document. But we don’t know the agenda, or the agenda-setting process, or even the process for setting an agenda-setting process.
And strategically, we don’t know how the Brazil meeting is going to affect all of the other parts of the take-over-the-Internet industry in the coming year. The CWG-Internet happens next month, and they will take up Brazil’s proposal from the WTPF. But since Brazil is positioning itself as a leader in this new process (and aligned with ICANN now), what will they try to get at the CWG? WTDC is in March-April. And of course the Plenipot will be in the fall next year. If the Brazil summit is perceived to have failed in any sense, will that make the battle at Plenipot even more intense?
Also, whose idea was it to have a gala without alcohol?
As expected, today at 1pm there was a packed, off-the-books meeting facilitated by the “I-star” organizations (ICANN, ISOC, IETF, and a bunch of groups that don’t begin with I). The purpose of the meeting was to build support for a new Internet governance “coalition.” The argument is that because of the NSA’s global surveillance programs, the US is losing support for its perceived leadership on Internet governance. In order to avoid greater governmental or intergovernmental intrusion into the Internet, the technical community, as signaled in the Montevideo statement, must go on the offensive and create an alternative to such intrusion.
This argument is controversial, to say the least. To what extent does the “offensive” entail creating a top-down institution to deal with Internet policy issues? Neither the technical community nor civil society wants government to be in charge of the Internet, but the technical community (especially ICANN) seems much more comfortable with top-down non-governmental control. I worry that ICANN is going to become increasingly government-like. In any case, we are witnessing a small but historic rift between civil society and the technical community, which have always been on the same side in the war to keep governments off the Internet.
Even if ICANN’s argument makes a kind of sense, it may be reckless to pursue it in the proposed way. It’s now looking like there will be a don’t-call-it-a-summit in Rio in early May, hosted by the Brazilian government, to discuss these issues. Even if ICANN has good reason to believe that Brazil is negotiating in good faith, there is always the possibility that Brazil gets what it wants in the end. They are not likely to just roll over.
I’m open to the idea that we need an affirmative answer to the question of Internet policy institutions. But I’d feel a lot more comfortable if such institutions evolved bottom-up rather than emerging from a grand push, organized secretly by some members of the technical community, to create an alternative. Hopefully with the creation of the new coalition mailing list, everything can be done out in the open from here on out.
Day 1 of the Internet Governance Forum is in the books, and everyone is talking about what will happen on Day 2. Brazil recently announced that it will host a meeting on Internet governance in April. Tomorrow, ICANN is hosting a meeting at 1pm to explain how the April meeting will work.
Everyone that I’ve talked to in the hallways has brought up the meeting in April. No one is quite sure what to expect.
On one hand, Brazil has been part of the coalition that is pushing to do more Internet governance at the ITU. On the other hand, ICANN seems to be a willing participant in Brazil’s scheme. The recent “Montevideo Statement,” issued by various Internet organizations, called for globalizing the IANA function, which means at a minimum removing the US’s special role of maintaining the domain name system’s root zone file.
ICANN wants independence from the US government, and Brazil wants ICANN to be independent from the US government (and possibly dependent on the ITU), so this makes them allies for now.
Bizarrely, NSA surveillance continues to be cited as a reason for Brazil’s actions, although of course the IANA function has nothing to do with surveillance. The IANA issue is mostly about status. Other governments seem to feel slighted by the US’s control of the root zone file.
In any case, tomorrow we may know slightly more about ICANN and Brazil’s schemes.
On Sunday, the New York Times ran a story by Natasha Singer on the ongoing generic top-level domain (gTLD) expansion. Singer correctly notes that there is a great deal of skepticism that the new gTLDs will add social value. After all, what is the social value of .book when there is already .book.com?
Singer also raises cultural, expression, and competition concerns:
There’s a larger issue at stake, however. Advocates of Internet freedom contend that such an expanded address system effectively places online control over powerful commercial and cultural interests in the hands of individual companies, challenging the very idea of an open Internet. Existing generic domains, like .net and .com, overseen by Verisign Inc., a domain registry, have an open-use policy; that means consumers can buy domain names ending in .com directly from retail registrars like GoDaddy. With a new crop of applicants, however, Icann initially accepted proposals for closed or restricted generic domains, a practice that could limit competing views and businesses.
It’s true that there is concern over “closed generics,” but I think there is a deeper problem than anti-competitiveness that could emerge from TLD expansion. Continue reading →
ICANN is meeting in Durban, South Africa this week, and this morning, its Governmental Advisory Committee, which goes by the delightfully onomatopoetic acronym GAC, announced its official objection to the .amazon top-level domain name, which was set to go to Amazon, the online purveyor of books and everything else. Domain Incite reports:
The objection came at the behest of Brazil and other Latin American countries that claim rights to Amazon as a geographic term, and follows failed attempts by Amazon to reach agreement.
Brazil was able to achieve consensus in the GAC because the United States, which refused to agree to the objection three months ago in Beijing, had decided to keep mum this time around.
The objection will be forwarded to the ICANN board in the GAC’s Durban communique later in the week, after which the board will have a presumption that the .amazon application should be rejected.
The board could overrule the GAC, but it seems unlikely.
This is a loss for anything resembling rule of law on the Internet. There are rules for applying for new generic TLDs, and the rules specifically say which geographic terms are protected. Basically, anything on this list, known as ISO 3166-1 is verboten. But “Amazon” is not on that list, nor is “Patagonia;” .patagonia was recently withdrawn. Amazon and Patagonia followed the rules and won their respective gTLDs fair and square.
The US’s decision to appease other countries by remaining silent is a mistake. The idea of diplomacy is to get countries to like you so that you can get what you want on policy, not to give up what is right on policy so that other countries will like you. I agree with Milton Mueller, whose bottom line is:
What is at stake here is far more important than the interests of Amazon, Inc. and Patagonia, Inc. What’s really at stake is whether the Internet is free of pointless constraints and petty political objections; whether governments can abuse the ICANN process to create rights and powers for themselves without any international legislative process subject to democratic and judicial checks and balances; whether the alternative governance model that ICANN was supposed to represent is real; whether domain name policy is made through an open, bottom-up consensus or top-down by states; whether the use of words or names on the Internet is subject to arbitrary objections from politicians globalizing their local prejudices.
As I noted here a few days ago, the Federal Communications Commission held a workshop on Tuesday about “Speech, Democratic Engagement, and the Open Internet.” It was a shockingly one-sided affair with the deck being stacked almost entirely in favor of advocates of Net neutrality regulation. Worse yet, those advocates shamelessly made up spooky stories about a future of “private censorship” that could only be remedied by using the First Amendment as a club to beat private players into submission. The token opposition at this Chicken Little circus was Robert Corn-Revere, a Partner at the law firm of Davis Wright Tremaine LLP in Washington, D.C. Bob set the record straight–both in terms of baseless accusations that were flying that day as well as the revisionist histories of the First Amendment that were being put forward. I’m happy to report that Bob allowed PFF to reprint his remarks as a new white paper entitled, “The First Amendment, the Internet & Net Neutrality: Be Careful What You Wish For.”
In his essay, Corn-Revere discusses the relationship between the First Amendment and regulatory policy, particularly the treatment of new communications technologies, and he warns that government regulation of broadband networks could “provide the vehicle for advancing new First Amendment theories for media regulation” and online speech and expression more generally. “It should not be forgotten,” he argues, “that the federal government’s initial impulse was to censor the Internet and to subject it to a far lower level of First Amendment protection. It pursued this agenda for more than a decade but was blocked by a series of First Amendment rulings.” The Communications Decency Act and the Child Online Protection Act are just two notable examples. Luckily, the courts determined that “the open Internet would be at great risk if the government is allowed to exercise such power,” he notes, and they struck down such laws.
Continue reading →
Here in Washington, DC we’re finally experiencing a changing of the seasons. The summer heat is retreating as cool , autumn air invades. It’s a changing of the guard–just like what’s happening to ICANN with today’s expiration of its oversight by the U.S. government. Only its a spring-like blossoming for ICANN.
The Department of Commerce has allowed the JPA to expire, thus completing the transition of DNS management to ICANN. There were many skeptics that wanted to give ICANN more time to develop permanent mechanisms for true accountability. Others were concerned about the threat of capture, especially on hearing proposals from the United Nations and European Commission to assume control over a newly-independent ICANN.
Over at the NetChoice blog, Steve DelBianco says that we should be pleasantly surprised to see the new Affirmation of Commitments unveiled by ICANN today, because it does much to address both of those concerns. It creates review mechanisms for accountability, new domains, and domains in non-Latin characters (IDNs).
These new “review teams” could bring to ICANN something similar to the ‘official review’ we have for football and tennis. For close, controversial decisions, this framework could help ICANN to correct a bad call and get back on-track. I can see a couple of areas where these new review teams can have an impact right away:
I’m glad to see that the security review team has a forward-looking focus on making sure the DNS stays up 24-7, around the world, even under increasing security threats and a major expansion of top-level domains.
The review team for competition and consumer choice might finally get ICANN to get its registrars to fulfill the role they were designed for: to offer consumers a choice of all top level domains—not just the ones that a registrar prefers to sell.
So it seems more like a Spring-like flowering than a Fall dropping of the leaves. ICANN gets independence, plus there’s a balanced framework that brings all governments into the oversight process alongside private sector stakeholders, with a sharpened focus on security and serving global internet users.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.