1.1 A Constitutional Moment

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Hence, the unusual gathering in Virginia. The IFWP was the response of those who took literally the U.S. government's call for private sector leadership. It was conceived as an open, neutral arena that would bring the key parties involved in the domain name wars together in face-to-face meetings. Tamar Frankel, a Boston University law professor who was expert in corporate governance structures but largely innocent of the Internet and its controversies, agreed to preside over the meetings. Many participants in the Reston meeting reveled in the government's willingness to keep its hands off and allow the 'Internet community' to resolve the problems on its own. The words consensus and self-governance were on everyone's lips. Ira Magaziner, the Clinton administration policy adviser who had supervised the White Paper proceeding, gave the Reston gathering a kind of official blessing with an opening speech and then left to allow 'the private sector' to do its work. Jon Postel, the respected Internet technologist who had managed the number space and domain name delegations for many years, sent a letter from California expressing his hopes that the forum would succeed. The Reston meeting was followed by quickly organized counterparts in Geneva, Singapore, and Buenos Aires. The ultimate result, for better or worse, was the Internet Corporation for Assigned Names and Numbers (ICANN).

The IFWP seemed to initiate a unique form of international organization. Normally, policy for global resources such as Internet names and numbers would be coordinated through established institutions, such as national governments, trade associations, standards bodies, international treaties, or formal international organizations. The Internet was different, however. It seemed to call forth an entirely new spirit for collective action. It had created a perplexing set of issues that eluded resolution by any one government or organization. There was no suitable legal or organizational framework in place. Various organizations-the Internet Society, the International Telecommunication Union (ITU), alternative 'root server confederations'-had tried and failed to create one.

The type of problem that the White Paper set out to solve was not entirely unprecedented. The telegraph and postal systems, radio, satellites, air travel, and maritime transport all had raised similar issues in the past. These problems had been handled by collective action among nation-states through formal treaties or intergovernmental organizations such as the ITU. Something different was happening here. The intellectual, commercial, and political climate surrounding the Internet militated against the involvement of states and state-derived international organizations. True, the U.S. government had set the stage for the process by holding a formal proceeding and issuing a policy statement. It still held substantial power over who would be selected to administer the authority. But the method it was using deviated sharply from traditional ones. Indeed, at the initial IFWP meeting, Magaziner presented the White Paper as an epochal change in the nature of international organization. Drawing on a distinction between 'industrial society' and 'information society' that was popular at the time, Magaziner suggested that the White Paper's methods were more appropriate to the information age. 'We believe that the Internet as it develops needs to have a different type of coordination structure than has been typical for international institutions in the industrial age. [G]overnmental processes and intergovernmental processes by definition work too slowly and somewhat too bureaucratically for the pace and flexibility of this new information age.' [2 ]The Harvard professor Lawrence Lessig, on the other hand, a critic of the administration's private sector approach, complained that 'we are creating the most significant jurisdiction since the Louisiana purchase, and we are building it outside the review of the Constitution.' [3 ]

A scene from the International Forum on the White Paper is thus a fitting way to open this book. Although it was only one of many episodes in the process, it was perhaps the purest exemplar of what David Post (1998) has called 'cyberspace's constitutional moment.' The Internet's growth created a need for a new kind of social contract. Its crucial central coordinating functions needed governing arrangements that were both technically robust and capable of winning the support and cooperation of global, diverse, constantly expanding, and often conflicting groups of interested parties. The Internet's structure was so distributed, and the organizations that built it were so diverse and so informal, however, that no single group, not even the U.S. government, possessed the legitimacy and authority to pull it all together on its own. If the IFWP process seemed ramshackle and ad hoc, it was because it had the task of bootstrapping authority on a global scale in an absurdly compressed time span. There was, for precisely this reason, something exhilarating about the IFWP's brief moment. Like the first meetings of the Long Parliament in the English revolution of 1640,[4] the apparent power vacuum produced a heady feeling of selfdetermination. It encouraged idealistic pronouncements based on first principles. It fostered the illusion that the needed governance arrangements could be designed from scratch. And the IFWP, like the Long Parliament, was ultimately bypassed and superseded by more powerful forces impatient with the transaction costs of an open, democratic process. Yet, by creating expectations of open public participation and private sector consensus the IFWP had a lasting impact on the process.

[2 ]Ira Magaziner, introductory comments at the first IFWP meeting, July 1, 1998.

[3 ]Mo Krochmal, 'Magaziner, Lessig Spar over Domain Name Plan' Techweb News, June 11, 1998.

[4]See Christopher Hill (1958) for an account of the Long Parliament and its role in English history.

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Ruling the Root(c) Internet Governance and the Taming of Cyberspace
Ruling the Root: Internet Governance and the Taming of Cyberspace
ISBN: 0262134128
EAN: 2147483647
Year: 2006
Pages: 110

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