[governance] fyi [Fwd:] Seven Questions: Battling for Control of the Internet]

[Jeanette Hofmann]

Seven Questions: Battling for Control of the Internet

http://www.foreignpolicy.com/story/cms.php?story_id=3306

Posted November 2005
Should the United Nations control the Internet? That’s the subject of a
heated debate slated to take place at the World Summit on the
Information Society in Tunis later this month. The European Union is
pressing for a U.N. role in governing the Internet, which is currently
in the hands of a U.S. nonprofit. Lawrence Lessig breaks down the debate
and offers his views.


FOREIGN POLICY: What is causing the rift between the United States and
Europe over control of the Internet and what do you think will be the
outcome of the summit in Tunis?



Lawrence Lessig: The largest cause of this rift is European distrust of
the United States. It’s not particularly related to the Internet. The
Europeans are eager to stand up to the Americans, and that I think has
been produced by the last five years of U.S. foreign policy. It’s not
really a cyberlaw problem.



 From what we know right now, three different things could happen [at
Tunis]. The Europeans could get it together and actually invoke the
authority to exercise control over Internet governance, displacing the
[Internet Corporation for Assigned Names and Numbers, or] ICANN
position. The Americans could find a way to buy them off. Or, there
could be a stalemate. But what’s interesting is, in 1998, there was no
question of the Europeans taking over because there wasn’t the level of
skepticism of the U.S. government, even though there was a lot of
skepticism about ICANN at the time.



FP: The EU and several countries say that their “nuclear option” would
be to set up a rival ICANN, resulting in two standards for the Internet.
Do you think that’s a realistic scenario?



LL: Let’s talk about what that would mean. Right now, there is a limited
number of root servers that point to the primary root server from which
you get propagation for everything in your general top-level domain
(TLD). So there’s a .com server that serves 13 other servers that then
propagate all changes in the .com name. And the same thing is [true] for
every other TLD—.org, .ing, [.edu, etc.]



 From the beginning, people have talked about building an Internet that
wouldn’t depend upon the TLD hierarchy. It doesn’t mean there would be
two or three Internets, but that you would have a domain name system
that wouldn’t depend upon hierarchical naming. As long as there’s
coordination across hierarchies about ownership of domain names, you
wouldn’t necessarily produce any destructive results. One could query a
hierarchy for the answer to the question “Who owns Lessig.com?” and then
ask another hierarchy if we don’t get an answer from the first one. So
it is possible for different systems to evolve that would allow the
Europeans to control one part and the Americans to control another
without destroying the ability of the Internet to continue to function
the way it does now.



What people are afraid of is that there will be a split within the
single hierarchical system which would result in two different
populations of the dot-com domain name system existing out there. Then
there would be a real conflict. My view is that if in fact there is a
separation like that, there are a lot of incentives for these two
separate roots to figure out a way to coexist. There would be lots of
anger [when] you realize that you’re not getting the IBM.com you
expected. But there’s no reason why you couldn’t have multiple root 
systems.



FP: Some say a shift away from ICANN would empower countries such as
North Korea, China, and Iran to censor or control the Internet. Is that
an accurate criticism?



LL: The ability to facilitate censorship is independent of the question
of who owns the roots. Say we have the system we have now and China
wants to censor it. It builds a list of IP addresses it won’t serve
content to or won’t allow to be shown on its servers, and then it
basically uses that list to filter all IP packets that come across the
Chinese network. If the world had two roots, one China-controlled and
one U.S.-controlled, then it would be one step simpler for China to
censor because it could filter its own root. But it would still have to
do the same things it does now with regard to the U.S. root content. The
technology you’re using to censor is not necessarily tied to the
architecture of the root name.



FP: Do you see international governance of the Internet having an impact
on the free flow of ideas and commerce on the Web?



LL: I’ve been a critic of ICANN for a long time, especially in its early
stages. But I think what it’s trying to do now is pretty close to what
it ought to be doing, which is just trying to serve technical functions
in the narrowest possible way. They’ve resisted a lot of policy work
that they could have been doing.



Right now, I hope that ICANN continues to exercise control. It’s not
because I have any affection for the U.S. government’s control over
ICANN, but because I think that they’ve developed an internal norm about
making as light a regulatory footprint as they can. I would be worried
about transferring authority because I think that some other body coming
in might imagine it can use its power over the domain names to try to
regulate all sorts of policy objectives. We’d all be worse off if that
happened.



FP: Are the biggest challenges and questions that face the Internet
right now essentially social and political, or are they more technological?



LL: I don’t think there’s an “or.” The fundamental point I’ve 
conveyed
in my writing and teaching—apparently no policymaker has yet learned
this—is that policy is a function of technology. You can’t do
policymaking in cyberspace without thinking about the interaction
between technology and policy. It’s as ridiculous to be a policymaker
and believe that you can make policy without thinking about the
technology as it is to be chairman of the Federal Trade Commission and
think that you can talk about competition policy without thinking about
the economic consequences of the rules you impose. A smart policymaker
asks, “What technology will my policy produce?” and “Will the net 
result
of that technology in my policy be the policy result I want?”



FP: Are there any decisions that will be taken at the summit in Tunis
that you see as being overshadowed by the EU-United States conflict?



LL: I question whether the [summit] is considering all the issues it
needs to be. I was a speaker at one of the preparatory committees and,
before my speech, I was asked about what I was going to talk about. I
said I was going to talk about the need for balanced intellectual
property rules in order to produce the best information society
[possible]. The chairman of my session said I was not allowed to talk
about intellectual property. She said that’s a problem for the World
Intellectual Property Organization. It was ridiculous. It revealed a way
in which the deal was struck to establish the World Summit on the
Information Society, which was as long as you don’t touch intellectual
property you can talk about whatever you want. The insane thing about
that position is that there’s no way to strike the right balance unless
you consider intellectual property. [For example,] database rights are
going to fundamentally affect the future of the information society. The
question remains whether the [summit] will be allowed to develop any
coherent policy position about the proper balance for intellectual
property. My skepticism suggests that they won’t. This issue will be
negotiated off the table by those who want to keep control over that policy.



FP: What impact, if any, will recent changes to the makeup of the U.S.
Supreme Court—Roberts and possibly Alito—have on information technology,
intellectual property, and the Internet?



LL: No idea. I don’t know anything about Alito’s views about technology.
I don’t think he’s ever said anything interesting about it. I think
Roberts, just based on the kind of work that Jeffrey Rosen did in his
recent New York Times piece, will be smart and eager to understand and
do the right thing. But I don’t think we have any good information about
how they think about these issues.



Lawrence Lessig is professor of law at Stanford Law School and a
columnist for Wired magazine.
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