1.3 Governance

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During the debates over the formation of ICANN, an interesting dialogue evolved over the use of the term 'Internet governance.' To some, ' governance' meant the legal and organizational arrangements for management of the root functions. This narrow construction of the term was analogous to the way we use 'corporate governance' to refer to the articles and bylaws of an organization, how board members are elected, and so on.

To many others, however, 'Internet governance' raised troubling questions. Aside from being a single point of failure, the domain name system (DNS) root is also, potentially, a single point for the surveillance of users and the control of access to cyberspace. The strategic lever of the root, many believed, could be used to enforce public policy and to regulate or control Internet users. 'Internet governance' sounded a lot like 'a government of the Internet.' As David Post (1998) observed,

If the person or entity controlling the root servers determines that a $1,000 fee (or a certificate of good standing from the California Secretary of State, or a pledge to abide by the laws of Uzbekistan, or a promise not to transmit encrypted messages, or . . .) is required to register a name-number combination and place it in these publicly accessible databases, those who cannot or will not pay the fee, obtain the certificate, or make the required promises, are effectively banished from the global system.

Indeed, the original creators of ICANN always attempted to distance themselves from the term 'governance.' They preferred to say 'technical management.' As Esther Dyson put it, ICANN 'governs the plumbing, not the people. It has a very limited mandate to administer certain (largely technical) aspects of the Internet infrastructure in general and the Domain Name System in particular.' [7 ]

The White Paper itself utilized governance in both senses, referring at one point to the 'bottom-up governance that has characterized the development of the Internet to date' (NTIA 1998b, 31749) and claiming at another that 'the U.S. government policy applies only to management of Internet names and addresses and does not set out a system of Internet ‘governance'' (31743).

The two meanings define the fundamental dilemma of Internet governance: the intersection of technical management and regulatory control. Where does one end and the other begin?

It is clear that technical management decisions have direct and immediate economic consequences. Decisions made by those who control the root profoundly affect the structure of the rapidly growing market for domain name registration. At the beginning of 2001, that market was valued at about US$1.5 billion, and it had doubled annually for the preceding five years. As discussed in later chapters, it was the conflict over who would be assigned the right to register names under new top-level domains that catalyzed much of the global governance debate. It is a question a root manager cannot avoid making decisions about. The economic value of IP addresses is harder to estimate, because end users are not allowed to trade them in a market. (That, of course, is itself a policy decision of some magnitude that straddles the economic and the technical.) But most experts would view addresses as even more valuable assets than domain names. IP addresses are essential inputs into networked services. Their cost and availability will have a major impact on the business plans of telecommunication service providers and equipment manufacturers in the burgeoning digital economy.

The importance of root governance goes well beyond the dollar value of any real or imagined market for names and addresses, however. As unique identifiers, IP addresses can be used to identify and track users. Similarly, domain name registration records directly reveal to the world the name, email address, and physical address of the registrant. The domain name system establishes a mechanism for the identification and surveillance of the denizens of cyberspace. Consider, then, the security and privacy implications of the policies adopted by an Internet naming and addressing authority. Contradicting privacy concerns are demands by some government agencies to use domain name registration data to facilitate identifying and sanctioning Internet users who break the law. A domain name record can, in fact, function very much like an Internet 'driver's license.' Here is another policy tug of war that cannot be sidestepped by whoever administers the root.

A similar tension hangs over domain name-trademark conflicts. The domain name system allows almost anyone to think of a name, register it (if it is not already taken), and publish it globally. The brand equity of trademark holders often conflicts with the ability of individuals and small businesses to express ideas and achieve visibility in cyberspace. As discussed in later chapters, major intellectual property holders succeeded in linking domain name registration to the adjudication of trademark- domain name disputes. Indeed, they are trying to leverage the root's ability to monitor and police intellectual property in even more ambitious ways.

The assignment of domain names also intersects with content regulation, or what Americans call free-speech or First Amendment questions. Several interest groups and politicians have called for the creation of a .xxx top-level domain in order to clearly identify and segregate sexually explicit material. By the same logic, many businesses and consumers have called for a .kids domain that would only contain 'child-appropriate' content. But if a domain name authority assigns a .xxx domain, is it encouraging governments to use their powers to force all sexual material into that domain? If so, who decides what is X-rated on a global basis? If the root administrator gives someone the .kids domain, is it taking responsibility that the sites under that label really are suitable for children? More broadly, should a domain name administrator be concerned with the authenticity of the content associated with a specific domain name?

The tendency for policy demands to be placed on the administration of the root cannot be dismissed. And that does not even begin to touch upon the geopolitical questions. For if one concedes that control of the root is economically, technically, and politically important, then one cannot avoid the issue of how that power is distributed among the world's nations, geographic regions, and cultures. Would Americans feel comfortable if the root of the domain name system were located in China? If not, how can they expect the Chinese to be happy about its location in the United States?

The uncomfortable fact is that the two meanings of 'Internet governance' are inseparably linked. Centralization of control at the root does create levers for the intrusion of politics, policy, and regulation. If these powers are not to be expanded or abused, the governance structure (in the narrow organizational sense) must be designed to prevent this from happening. There is no way to institutionalize control of the root without confronting the larger governance issues. Investigating the nature of these issues forms the central theme of this book.

[7 ]Esther Dyson, letter to Ralph Nader and Jamie Love, June 15, 1999.

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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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