InfoTech & Public Policy

            The .xxx domain has been the source of all sorts of different controversy.  Many civil rights groups worry that its creation could legitimize the pornography industry or increase the amount of porn on the internet.  Free speech advocates fear that it could lead to internet censorship.  Of course there are many potential positives to the creation of a .xxx domain.  Those who wish to view pornographic material would have an easier time finding it while those wishing to avoid it or block it would also have an easier time.  This reasoning recently motivated two US Senators to propose a bill which would create the .xxx domain and require all pornographic websites located in the main top level domains such as .com, .net, etc. to relocate to this new domain.  Beyond adding to the controversies above, this proposed bill could intensify an already heated debate over control of ICANN and the DNS servers. 

            The fact that two senators even proposed such a law implies that they believe the US has the right to actually directly influence ICANN policy without the input of the rest of the world.  Consider the implications of implementing this bill.  The US could not enforce this law without ICANN’s involvement.  Their jurisdiction is only over countries in the US.  If a pornographic website has all of its operations overseas the US can do little to force it to move to the .xxx domain.  Furthermore any such efforts could potentially drive US porn companies to move over seas costing the US a significant amount of money.  Because the internet is global as long as some pornographic sites remain in the main stream domains this law would have virtually no effect in terms of removing pornography from the those domains. 

            Therefore for the law to be effective it must require all pornographic websites to move to the .xxx domain whether or not they are based in the US.  The only way for the US to do this would be to have ICANN force these sites off of the other domains like .com, .net etc.  This approach is in fact the one the senators suggest in their bill.  The fact that US senators would even propose such a bill serves to confirm other countries worst fears about US oversight of ICANN.  Until recently the US could always claim that it never exercised its power over ICANN and that all of these countries concerns were only theoretical.  However this bill demonstrates US lawmaker’s willingness to consider directly influencing major ICANN policy. 

            The most ironic thing about this proposal is that when the .xxx domain was initially proposed it was US intervention that postponed its creation indefinitely.  This initial intervention helped fuel calls for international oversight of ICANN from countries like the EU.  The bill is facing heavy resistance and will likely be defeated however the damage could still be done.   Merely proposing the bill is a reminder of the potential power the US could wield over the internet.  Passage of this bill could very well be the final straw to lead to the US losing its oversight power over ICANN.  Rather than supporting these countries fears, the US should be doing everything it can to demonstrate that these fears are unfounded. 

Just a few weeks after we discussed the possibility of an alternate root in class:

“China’s Ministry of Information (MII) has made adjustment to China’s Internet domain name system in accordance with Article 6 of China Internet Domain Names Regulations….

Under the new system, besides “CN”, three Chinese TLD names “CN”, “COM” and “NET” are temporarily set. It means Internet users don’t have to surf the Web via the servers under the management of the Internet Corporation for Assigned Names and Numbers (ICANN) of the United States.”

Acces the entire article here.

I’d like to respond to Christian Hansen’s February 20 posting regarding internet governance.

It’s hard not to laugh out loud when considering the idea that the Europeans believe that a more democratic regime is necessary for internet governance.  I’ll avoid the cheap and easy shots about their lack of support for democracy for actual developing countries and their citizens.  I’ll take their support for democracy whenever I can get it.

I disagree that momentum is on their side.  The EU and UN together are unlikely to mount any serious threat to U.S. governance.  And they are certainly unlikely to persuade U.S. officials and lawmakers that they have something to offer. 

Why would the U.S. release any control?  And if the U.S. decided to share control, would it chose to work with the UN and EU – two organizations which have proven to be incapable of competent governance in their own right?  The fact that the EU was actually able to come to agreement that it sought increased international governance over ICANN was an extraordinary feat. 

At the WSIS in September 2005, one Brazilian delegate said, “”On Internet governance, three words tend to come to mind: lack of legitimacy. In our digital world, only one nation decides for all of us.” (http://www.iht.com/articles/2005/09/29/business/net.php) He’s totally wrong.  There is no lack of legitimacy.  U.S. taxpayers funded the development of the internet.  The United States government and private companies created the internet as it exists today.  To be sure, foreign companies have played an important role in the advancement of technology.  But ultimately the internet is largely a U.S. creation.  The U.S. government should continue to work closely with private industry and foreign governments as it governs ICANN.
 

The United States should continue its governance of the internet, without bringing the debating societies of New York and Brussels into the process.   Internationalization is unlikely to increase transparency or effectiveness.  And while I tend to be skeptical of the competency of any level of government, I am even more skeptical of an international organization taking control of such a vital asset.  And I see no reason why the U.S. would consider doing so.

            I too wanted to return to the discussion of ICANN.  Specifically I wanted to focus on the current role of the US as the overseer of ICANN.  While many countries object to the current setup of ICANN there have been few suggestions that present a significant improvement.   ICANN under its current setup has been relatively successful though admittedly not perfect.  Up until recently the US kept ICANN at arms length.  The one major incidence of US interference came during the debate to create a .xxx top-level-domain.  Under heavy political pressure, the US asked ICANN to postpone the creation of the .xxx top level domain indefinitely.  Other than this isolated occurrence however, ICANN has been free to act on its own. 

            One of the most prominent solutions suggested regarding ICANN involve either turning it over to or remodeling it after the International Telecommunications Union.  The ITU would seem to be an ideal candidate for a number of reasons.  It was actually the first ever international organization and is widely viewed as a great success.  It has experience dealing with many relatively similar issues to the assignment of domain names and numbers.  For example, the ITU is in charge of the assignment of radio frequencies and telephone numbers.  In fact the ITU has arguably made many superior choices to ICANN when faced with a variety of issues.  For example, the ITU decided early on that it would not allow radio frequencies to be acquired and resold.  ICANN chose not to go this route with domain names early on and it had to deal with a whole slew of issues regarding cyber squatters.  The ITU is also familiar with transferring power from a single state to the UN as it had its secretariat moved from the control of the Swiss government to the UN in 1947. 

            This being said, there are a number of reasons why transferring ICANN’s responsibilities to the ITU would be less than ideal.  First there is the issue of the US itself.  It has little motivation to give up its oversight power.  The US managed to retain control of ICANN at a recent international conference in Tunis.  It has by far the most internet hosts.  According to the CIA, as of 2004 the US had 115 million hosts.  Its closest follower was the EU with 22 million and the drop-off is severe from there.  The US has a history of reluctance to give up power and there is no reason that they would be more willing to under present circumstances. 

            Furthermore there are many advantages to the current setup of ICANN.  Under the oversight of the US the internet has achieved an unprecedented rate of growth in part do to the lack of restrictions placed on it.  Because ICANN is a private corporation it is able to avoid some major political issues such as whether or not Taiwan should be granted its own domain.  Modeling ICANN after the ITU would give every country one vote.  While this might grant other countries the power over the DNS servers they desire it would also make it difficult to quickly update ICANN’s policies.  The internet is growing and changing so quickly that it needs a body that can readily adapt to these changes.  Furthermore many of the countries who object to the oversight of ICANN by the US are also the countries that most limit access to the internet.  We would not want to turn the internet over to a body that would increase censorship and limit what makes the internet so valuable today.

            Finally one final comment I would like to make on ICANN is that no matter what solution is adapted regarding the assignment of domain names it might not matter in the long run.  The future of domain names is very much up in the air.  As search engines like Google continue to become more popular and effective the use of domain names could continue to decrease until these issues are all but moot.  As Cukier mentions many internet addresses already do not use domain names.  Thus as long as the US continues to exercise restraint ICANN is probably best left in the hands of the US for the time being.

Our conversation on the management of ICANN was interesting and one I would like to return to. The discussion focused on whether ICANN should continue to be responsible to the US Government, or if oversight should be delegated to an international body. Rather than tackle such a large question here, I will offer a brief overview of the work completed by the European Union in recent years on the question of Internet governance. The EU has offered the most potent criticisms of US oversight of ICANN, and is the main “demandeur” of change in how the body is governed. In understanding EU progress toward their stated goal of a “more democratic” governance of the Internet, we will get a better handle on the likelihood that ICANN will remain under US oversight in the near term. A quick analysis of EU work to date reveals that momentum appears to be in their favour.

The EU is a byzantine set of institutions. A variety of actors produce position papers, Directives, Communications and other documents seemingly without end. While difficult to wade through, these documents are revealing in terms of how the current EU position on ICANN was formed, and how their objectives have evolved. Ministers from several European countries first declared that the Internet should have an “internationally recognized” system of DNS management in 1997. The work of formulating the EU policy approach was then turned over to the European Commission. In a 2000 white paper, the Commission called for the ICANN Government Advisory Committee to (1) represent international community, and (2) have sole oversight over ICANN activities. The EU’s Member States endorsed these conclusions later the same year.

Having established the position that ICANN should be managed “more democratically”, the EU advocated the creation of a UN working group on Internet governance at the first phase of the World Summit on the Information Society (held in Geneva in 2003). The working group presented its report at the second phase of the WSIS in Tunis in 2005. The report suggests several new models for international governance of the Internet, from reforming ICANN’s Government Advisory Committee, to scrapping ICANN altogether. Importantly, there was agreement that “no one country should have a pre-eminent role in relation to…Internet governance.”

In sum, the EU has gone from simple ministerial rhetoric (1997) to aiding the creation of a UN working group (2003) which has resulted in specific recommendations as to how ICANN should be “internationalized” (2005). This slow, patient progress is typical of the EU and consistent with its policy formulation in other IT areas where they take an activist approach (such as privacy). The EU appears to have momentum on its side in its quest to move to a new model; that said, they have little leverage over the US besides the (rhetorical, yet attractive) argument that the Internet should be governed as other international communications media.

Many comparisons have been made in previous posts between the RIAA approach to illegal filesharing and possible methods of confronting online gambling. However, for policy purposes, there are a few key differences between music piracy and online gambling that I would like to highlight.
First we can consider the harm done by each. Even after the RIAA began to sue individuals, upping the stakes, many people believed that they could avoid the RIAA’s eye by only downloading files and not uploading any. Once downloaded, the damage was done, from the RIAA’s perspective; there was no need for the user to hold a connection open to play the downloaded MP3 file. More generally, I believe that the primary harm of internet piracy, again from the RIAA’s perspective, was breaking the monopoly-esque power of the record labels. It disinclined people from buying music in the way that people previously bought music: hearing a couple key tracks on the radio from a highly publicized rock star or diva, and fronting $20 for about thirteen songs of varying quality. Since then, consumers have come to appreciate new and less formal methods of music distribution that generally offer them more value: on-demand downloads, online radio, podcasts, and MP3 blogs. While piracy itself has hurt the RIAA’s profits, I think the shift in the market that piracy precipitated has been at least as troublesome a phenomenon for them. Even as their methods of piracy prevention have become more effective, they still have not seen the recovery they would like.
The harm of internet gambling is qualitatively different, and distributed differently over time. Whether the state bans are intended to protect gamblers from themselves, or simply discourage that form of economic activity, let’s assume that there is good reason for the ban and that the harm is very real. Online gambling requires a continuous connection to the Internet, and an indirect method of payment. Both can be attacked. While the RIAA has accomplished nothing until every “free” copy of a file is gone from the ‘net, every gambler who is prevented from gambling on the Internet is a small improvement in the situation. Making it troublesome for a user to connect to online gambling sites will likely also cut down on the addictive nature of playing. The final thing that is different is the issue of trust. Assuming the RIAA doesn’t sue you, taking a “free” copy of a music file from the Internet is relatively safe. While most people are aware of problems with gambling, there’s a certain assuredness in real casinos that the game is fair. I am surprised that this complacency transfers over so well to the Internet. It’s all too easy to create a scam site claiming to be an online gambling site that is in fact cleverly programmed to take money outright from its participants. This is the front I’d take, with a few large media stories about people who lost everything to internet gambling, and touching upon questions of fairness.

The more important question that intrigues me is the larger one regarding the governance of the Internet. In our first class, we discussed the development of an ad hoc form of trademark law by ICANN, and the ambiguities of jurisdiction apply to many more cases than online gambling. As we have discussed in class and on this weblog, copyright, trademark, and even decency standards tend to come into conflict. Conventionally, aside from gamers who enjoy immersive worlds, people think of the Internet more as an institution than a place, the latter word being reserved for real-world geographies. From this point of view, law would seem to straightforwardly suggest that the user is only in the geographical place and not the virtual one, leaving the problem one of enforcement (the aforementioned “arms race”). Is it possible that we might one day all come to think of the Internet a place of its own, that can be governed? Such a view would does make today’s legal questions of double jurisdiction extra-puzzling, for it is the first suggestion that we now have the mysterious ability to be in two places at once. Jurisdiction itself would start to make little sense, as there is only interaction with other people.