The future of internet governance

01 December 2005

Christopher Waugh

Recent comments by the US government and political stalemate at a United Nations summit have highlighted divergent international opinions relating to internet governance. Governments of developing economies in particular are dissatisfied at the continued regulation of the internet by a US-based corporation under the ultimate control of the US government. This article seeks to give some historical perspective to the current situation, and examines some of the difficulties in determining the future governance of the internet.

The International Telecommunications Union (ITU)

Originally founded by 20 Member States as the International Telegraph Convention in 1865, the ITU became an agency of the United Nations (UN) in 1947 and was tasked with overseeing the interconnection of international telephony and data systems. It has since been criticised for generating standards through closed forums, resulting in lengthy delays and excessive costs. As a result, the ITU has attempted to increase private sector participation, as well as streamlining its own administrative processes.

However, the view persists (particularly in the US) that the ITU is out of touch with the data communications sector. Its bureaucratic intergovernmental model is at odds with the light touch regulatory approach – relying on private sector competitive pressures to increase efficiency in the supply of services – that has characterised the growth of the internet.

The Internet Corporation for Assigned Names and Numbers (ICANN)

ICANN, a not-for-profit corporation, was set up under the Clinton administration as a direct alternative to the ITU. ICANN’s focus is not on top-down governmental regulation, but on administering the internet protocol infrastructure by promoting competition within a deregulated communications sector to drive international coordination.

One view of ICANN is as a US-based company which favours a US-Style market-orientated regulatory approach and is still ultimately controlled by the US government (for example, any changes to the net's core addressing systems, the root zone files, must currently be approved by the US Department of Commerce (USDoC)). Accordingly, the perception of ICANN as an entity whose purpose is to maintain and even promote US interests in relation to the internet is widely held.

This perception was partly counter-balanced by the 1998 Memorandum of Understanding (MoU) between the US Government and ICANN. The MoU envisaged a period of transition from public to private-sector Domain Name System (DNS) management, culminating in the US government relinquishing control of ICANN in 2006. However, this timetable has been threatened by recent comments from the US National Telecommunications and Information Administration (NTIA) and the US Senate.

ICANN – Current USGovernment Position

The NTIA gave a statement on 30 June 2005 to the effect that: the US intends to maintain its role in authorising changes or modifications to the authoritative root zone file; national governments have legitimate interest in the management of their country code top level domains (ccTLD), but that these are subject to the first comment to maintain the system’s integrity; ICANN, as overseen by the US government, is the appropriate technical manager of the Internet DNS; and dialogue relating to internet governance should continue in multiple fora as no single venue can address the entire subject.

This statement represents a shift in policy away from internationalising ICANN in favour of cementing the US-dominated status quo. The last comment in particular has been interpreted as a message to the UN that it should not seek to re-exert control over governance through the ITU or any other body.

Freedom of Speech

A resolution was introduced to the US Senate on 17 October 2005 calling for the US government to oppose any changes to internet governance at the World Summit on the Information Society (WSIS), to prevent national governments from altering the free and open nature of the internet and using it as an instrument of censorship and political suppression. The US’s concerns appear to be borne out by recent examples of alleged censorship and repression in two of the countries most resolutely opposed to the US within the WSIS forum: Iran and China.

In January 2004, the head of the Iranian judiciary ordered an internal investigation into claims of torture and ill-treatment of “bloggers” (persons who keep online journals, or “web logs”). It was announced in March 2004 that the report had been completed and would be made public shortly thereafter. However, between August and November 2004 more than 20 Iranian bloggers and internet journalists were detained, some of whom later testified that they had been mistreated. More recently, concerns have been expressed that the Iranian authorities may be seeking to centralise web filtering technology across the country's different net service providers with a new filtering system produced by an Iranian company.

In September 2005, China’s Ministry of Information Industry and State Council introduced “Rules on the Administration of Internet News Information Services” (the Rules) to ensure that news reports are “serving socialism,” “upholding the interests of the state,” and “correctly guiding public opinion.” Under the Rules, internet portals must take their news and commentary directly from official news sources. In addition, no private group or individual may distribute news or news analysis by e-mail or “Short Message Service” (SMS) without first registering as a “news organisation”.

Clearly, there are legitimate concerns that such policies appear to be aimed at restricting freedom of speech, which has hitherto been a central feature of the internet. Where the governments enforcing those policies are also seeking to acquire greater influence in the field of global internet governance, their potential impact is inevitably increased. This effect has recently played a large part in paralysing WSIS preparatory discussions.

WSIS

The UN Assembly endorsed the holding of a two-phase WSIS in 2001. The first phase took place in Geneva in December 2003, and the second phase is due to take place in Tunis from 16 to 18 November 2005. Prior to this second phase, the Preparatory Committee (PrepComm) met in Geneva in September 2005, and unsurprisingly reached an impasse on the subject of internet governance, owing to the entrenched positions of a bloc of countries including Brazil, China, India and Iran on one side, and the US on the other.

The EU delegation (under British presidency) produced a proposal providing for a "new public-private co-operation model" focusing on the involvement of international governments. The new model would, inter alia, provide the forum for “global allocation system of IP number blocks" as well as new procedures for the insertion of new top level domains in the root system. While it would be built on the existing ICANN organisation, the model required ICANN to be established under international law as opposed to US law. As the EU delegation noted, ICANN is in the anomalous position of being advised by numerous international governments but effectively acting on their behalf under the ultimate instruction of a single government, the US.

The EU proposal represented an attempt to mediate between the bloc of countries and the US; needless to say, the US response was extremely negative. It may be, however, that the EU proposal was drafted in provocative terms to catalyse discussion, and that there is considerable scope for certain elements of the proposal to be deleted in order to encourage the US to consider a compromise.

A clue to this lies in the fact that the organisation which runs the .uk domain name, Nominet, also set out its position prior to the Tunis WSIS, maintaining that no radical changes to Internet governance are required. Nominet’s concern, mirroring that of the US, is that international intervention in internet management would cause over-regulation, although it is prepared to accept a global policy forum to counterbalance US regulatory hegemony.

Conclusion

From a regulatory perspective, in a sector of such global scale which has flourished under ICANN’s market-friendly, US-style regulation, there may be a risk that international policy issues simply become aspects of international trade. In this context, there are questions to be asked as to whether ICANN goes far enough to protect developing economies, which are increasingly dependent on the internet, and are therefore understandably keen to be able to influence its governance.

However, given the record of the ITU, the US aversion to international governmental intervention in internet governance is understandable. While an international forum would arguably give other nations greater influence in internet governance, this would be at the risk of setting up bureaucratic and political hurdles for the further development of the internet.

In addition, in relation to the protection and proliferation of human rights, some of the most forceful proponents of internationalised internet governance are also frequently subject to criticism on the grounds of alleged human rights abuses, in particular (in this context) censorship and suppression of free speech. Accordingly, legitimate concerns may be raised as to whether such governments should be permitted to influence the governance of a system which has thus far been largely predicated on the concept of free speech.

It remains to be seen whether the Tunis round of WSIS can bring about any reconciliation between these apparently divergent positions.

This article was first published in the October 2005 issue of E-commerce Law and Policy.