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ICANN, Civil Society, and Free Speech

Rebecca MacKinnon

Gordon Crovitz's Op-ed in the Wall Street Journal about the relationship between ICANN and the future of free speech quotes me a couple of times. An extended excerpt:

Rebecca MacKinnon, a Web researcher writing a book about lessons from China on Internet freedom, praises Icann for being influenced by nongovernmental groups, not just governments. "The U.N. model of Internet governance is highly unsatisfactory from a human-rights and free-expression point of view for obvious reasons," she told me. "The Chinese and the Iranians and various other authoritarian countries will insist on standards and rules that make dissent more difficult, destroy the possibility of anonymity, and facilitate surveillance."

Up to now, governments have been largely hands-off. An amusing example is the dispute over the domain www.newzealand.com. The queen of England, "in right of her Government in New Zealand, as Trustee for the Citizens, Organizations and State of New Zealand," brought an action in 2002 against a Seattle-based company called Virtual Countries Inc. that had registered the Web address. The queen argued that her antipodean country should have control over its own .com name. This may sound reasonable, but she lost. New Zealand had to buy the .com address for $500,000.

Will governments like China's be as philosophical about Internet domain decisions they don't like?

Countries such as China, Russia and Iran have long argued that it's wrong for Icann to report to the U.S. government. Any alternative to the light control exerted by the U.S. government could put the Web on a slippery course toward more control. This is one reason efforts by these countries to politicize Icann have failed in the past.

"I think the question here is not about which governments have the moral right to lead Internet governance over others," Ms. MacKinnon argues, "but about whether it's appropriate that Internet governance should be the sole province of governments, many of which do not arguably represent the interests of Internet users in their countries because they were not democratically elected."

Crovitz emailed me last week when he was researching his column. I was somewhat more critical of ICANN's status quo in our exchange than in the quotes he ended up using. Below are my full answers, emailed to him on Thursday (hyperlinks added for people not familiar with some of the names, events, and terms to which I refer without explanation). If you are not familiar with ICANN acronyms and developments you may want to read this post and this post first.

* * *

Q: Why has China re-engaged with ICANN and what are Beijing's main concerns?

A: First of all, the issue of how Taiwan is to be named and treated is now resolved, and given the improvement in cross straits relations, sitting around the same table with the Taiwanese delegation has ceased to be an insurmountable issue. Secondly, ICANN is at a major juncture as it prepares to roll out internationalized TLD's, which means that URLs, completely in Chinese, before and after the dot, will become internationally possible for the first time ever in 2010. There are a bunch of technical issues with the way IDN TLD's get implemented, including whether it will be possible to have less than three characters in IDN gTLDs, etc., etc. (And given that most words in Chinese are 2 characters, that's a big deal which the mainly Western staff has a hard time getting their heads round.) There is also a long list of outstanding, unresolved details regarding the "new applicant guidebook" which will be finalized later this year: requirements for who can apply to run a new TLD, how much they'll be charged, who has the right to object to the use of certain brand names or place names or other names that certain cultures feel they have claim to, etc. The Chinese government and Chinese companies clearly have an interest in the details of how these things get implemented because it will impact how the Chinese language Internet can evolve internationally in the years to come. So Beijing really can't afford to be disengaged from ICANN if it wants to have a role in shaping these things.

Another reason China disengaged from ICANN was that during the WSIS process it and a number of other countries (Iran, Brazil, the EU) were pushing to have internet governance moved out of ICANN to the ITU or some other UN-like or UN body. However at WSIS in 2005 it became clear that there wasn't sufficient international consensuss for that to happen, human rights groups (including HRW) were vocal about the free speech implications, and the U.S. insisted on maintaining the status quo. A compromise was the formation of the IGF — a yearly multistakeholder forum where people from all around the world — governments, corporations, and civil society, get together and try to work out what the main issues are on Internet governance and where things should go from here. China has declared the IGF to be a waste of time that should be discontinued. It argues that that Internet governance should be left to governments, who adequately represent the interests of internet users, and that the multistakeholder governance model (which ICANN also uses, but as part of actual decision-making structures unlike the IGF which is only a talk shop) is ineffective and unnecessary.

Q: What concerns should others have about China's re-engagement?

A: China's re-engagement with ICANN is actually a good thing, as long as ICANN maintains its multistakeholder, consensus-based decisionmaking structure, and as long as the Government Advisory Council (which China rejoined) is not given excessive powers disproportionate to other stakeholder groups within ICANN. Chinese registrars and registries have remained engaged throughout ICANN's life, actually. It's just that the government wasn't engaged. The issue is whether China will feel that its interests (many of which are reasonable, like properly serving the linguistic and technical needs of Chinese Internet users and making it possible for Chinese companies to operate on an even playing field with Western ones) are adequately served within the ICANN structure, or whether it ultimately concludes that ICANN can't ultimately serve its interests, in which case they will go back to advocating its total dismantlement — or lead the way in splitting the root, taking the non-English speaking developing world with them.

The key in my view is to ensure that Chinese non-governmental civil society interests, and the interests of Chinese speakers not living in the PRC, can be heard and upheld by ICANN as it works out the shape of the global multilingual Internet. Whether or not that happens depends in part on whether non-PRC and Chinese non-governmental groups recognize the importance of engaging with ICANN, and get the financial support they need to engage, attend its meetings, and get involved with GNSO council through which at-large users and non-commercial voices can voice their concerns and seek representation. Right now Chinese civil society voices are absent from ICANN. Nobody's blocking them from being there necessarily — they're just not there. I guess mainly because very few people in the human rights/free expression space are paying any attention to ICANN if they even know it exists.

Q: The planned IDN/gTLD expansions could empower groups that might not be in political favor by giving them their own extensions, etc.. Does the governance structure of ICANN, with ultimate authority resting in the U.S. Dept. of Commerce., create an opportunity for greater rights to free expression? How has ICANN and Commerce been doing with this reponsibility?

A: From everything I have observed, the U.S. government's relationship with ICANN is extremely hands-off. That may be in part because ICANN isn't doing anything that goes against U.S. interests. But ICANN's decisionmaking structure is very complex. It's not like they're taking orders from Gary Locke and his people. They have a board and several layers of councils and constituencies who feed into the board's decision-making process, in addition to a large number of paid staff, and a CEO. The engineers who actually make the DNS work have a lot of power. So do the commercial registrars and registries, and other groups. Then there is an at-large user constituency and a non-commercial user constituency, both of which feed into the GNSO council which then feeds into the board. Etc. I do get the sense that the primary criteria for decision making has to do with what will keep the global internet working smoothly and what will make the domain name system globally inter-operable, rather than what the U.S. government wants.

I can certainly see why everybody except Americans think it's unfair, however, that the U.S. has ultimate power over ICANN. Especially at a time when Americans are no longer the biggest user group on the internet, we're shrinking fast as a percentage of overall global internet users. Chinese are now the biggest user group and they're only going to get bigger. Whatever I think of the Chinese government, I can understand how the situation looks to non-Americans. Insisting that the U.S. should keep the keys to ICANN is like saying that only white male Protestant land-owners from Virginia deserve the right to have the final say over how the U.S. is run. In the long run insisting on the status quo is a very un-democratic position to hold, if we are actually going to be intellectually honest.

That said, the UN model of internet governance is highly unsatisfactory from a human rights and free expression point of view for obvious reasons: the Chinese and the Iranians and various other authoritarian countries will insist on standards and rules that make dissent more difficult, destroy the possibility of anonymity and facilitate surveillance. No good. So what to do?

Ultimately, I think the question here is not about which governments have the moral right to lead Internet governance over others, but about whether it's appropriate that Internet governance should be the sole province of governments, many of which do not arguably represent the interests of Internet users in their countries because they were not democratically elected. In addition, I don't trust any government or any collection of governments — even if it were restricted to mature democracies — to uphold my freedom of speech and civil liberties. I don't think the U.S. government has been doing such a stellar job lately, and it too is placing increasing priority on security and fighting crime at the expense, I believe, of free speech and privacy. Sure we need security, but I don't think the USG had the balance right under Bush and I think Obama will disappoint the human rights/free speech community as well. Which is one reason why I think that having a multistakeholder model of Internet governance — in which both civil society and a range of private interests are able to have an equal role in decisionmaking alongside government representatives — is extremely important. There are too many constituencies across the global Internet whose interests cannot not be adequately represented, and whose rights cannot be adequately protected, by traditional geopolitical constructs.

So in my ideal scenario, ICANN's agreement with Commerce gets renewed in September but acknowledging the reality that ICANN's governance model has to evolve into something both more international and more multistakeholder-based over the longer term. Because if it doesn't, and if large parts of the world led by China eventually decide they want to create an alternative DNS not governed by ICANN because ICANN's Internet fails to suit their needs, they can and will do that. And that would be much, much worse. ICANN only has any power at all because everybody in the world has agreed to use its DNS.

Meanwhile efforts need to be made to help non-governmental civil society constituencies from Asia, the Middle East, Latin America, the former Soviet Bloc, and Africa gain a stronger foothold and voice within ICANN's multistakeholder structure. So that when the inevitable happens and the U.S. moves over to share power with other governments, as is only reasonable as Americans become a shrinking minority of Internet users, there will be plenty of other stakeholders involved with the process making sure that the governments who weren't elected and who would prefer to suppress dissent are not able to hijack the Internet's future as they've hijacked certain UN bodies.

* * *

So ends the e-mail exchange. One thing I did not get into with Crovitz are my concerns about whether ICANN's multi-stakeholder model is truly effective, and whether it is currently doing enough to listen to the needs of Internet users in the developing world and people who stand to benefit most from the forthcoming expansion of IDN gTLD's. Right now, I don't think ICANN is doing an adequate job at incorporating the concerns of non-commercial, civil society interests into its decision-making process.
If ICANN is serious about serving the needs and interests of all of the world's Internet users — not just the rich Western ones — they need to find a way to strengthen, support, and empower ICANN's non-commercial users. As the Internet expands to become a largely non-English place, the concerns of non-English speakers, people from the developing world, and people who are not represented by democratic governments become much more important. ICANN needs to find a way to make sure these people's concerns are heard and rights are protected. Right now, it's a fact that the ICANN community is not adequately seeking out or incorporating the views of the people who are fast becoming the majority of Internet users on the planet.

What does the proposed New Applicant Guidebook mean for Iranian dissidents? For Tibetans and Uighurs? For native speakers of Urdu, Bangla, and Malagasy? How might the recommendations proposed in the IRT report on trademark protection play out for potential domain registries and registrants in the developing world? I have seen no evidence when I was at Sydney that these questions have been seriously explored. If ICANN is serious about its stated mission, shouldn't they be?

The board hasn't made nearly enough effort to seek answers to these questions as they prepare to expand the gTLD space and roll out IDNs — assuming they really do care about the answers, which frankly I think they have failed to prove. On the other hand, in my humble opinion, the Non-Commercial User Constituency (NCUC) hasn't done nearly enough to play the role it could be playing.

The NCUC is currently struggling with ICANN staff over their governance charter. NCUC members had engaged in a consensus process to create a charter that they felt would best enable them to represent the interests of non-commercial Internet users around the world. ICANN staff has rejected that charter and is instead asking them to adopt a top-down governance structure, through which they would only be able to directly elect three out of the six NCUC representatives on the GNSO council. I won't get into all the details but you can read the discussion of the issue here and here, among other places.

Based on what various people at ICANN have told me, there appear to be concerns amongst some members of the ICANN board that the NCUC is dominated by a certain group of American lawyers and academics, who for some reason they don't like. There are a lot of personal animosities in both directions that seem to go way back to when ICANN was founded. Who gives a flying fart about those fights beyond the people involved? Everybody involved with ICANN needs to put the past behind them and figure out how to prove to the world that it can indeed be an effective, truly multi-stakeholder organization that represents the interests of the world's Internet users.

Until recently, the NCUC (which in my observation has in fact until now been run mainly by American and European academics and lawyers), has not had the depth of expertise and experience among its membership — and leadership — to be truly helpful on matters of greatest concern to the developing and non-English speaking world. Nor has the At-Large constituency — the other potential vehicle for individual user interests seemed to be very useful in that regard. But the NCUC has in the past few months undergone a big recruitment drive and has brought in a lot of new members from around the world. I'm optimistic that with its new bottom-up structure (if ICANN allows it) the concerns of a new, more diverse membership will be able to drive the constituency's work at ICANN in the future. I'm also optimistic that if members of civil society groups around the world view the NCUC as an effective way to engage with ICANN, they will make greater effort to participate. It's time for ICANN to prove that its multi-stakeholder bottom-up process, which new CEO Rod Beckstrom has been bragging about, is not a sham.

By Rebecca MacKinnon, Journalist and activist; Co-founder, Global Voices Online
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So - how much of this controversy is based on .... Suresh Ramasubramanian  –  Jul 27, 2009 9:12 PM PDT

1. Membership that's fairly static and with politics / personal battles that go back decades - your comments on the NCUC are something I tend to agree with.

2. Non engagement of various governments in the GAC (where they'd send some representatives, but the key decisions were taken by other persons in the government - possibly other departments - who were more active in the ITU, rather than in the GAC)

3. Somewhat of an over-representation of business interests (IPR, registrar etc) constituencies, possibly?

Another thing is the whole issue of multistakeholderism .. Suresh Ramasubramanian  –  Jul 27, 2009 9:19 PM PDT

A lot of the stakeholder debate - especially in the IGF (and in other civil society groups within and outside ICANN) <- the groups outside ICANN - such as the IGF which is supposed to have a much broader agenda .. inevitably tend to have discussions that converge on ICANN topics, and would possibly be better off somewhere within the ICANN framework rather than cluttering the IGF.

The have / have not stakeholder issue is a bit more complex. Some stakeholders:

1. Have a legitimate need - that qualifies as a meaningful stake.
* And that participate actively in ICANN, to further the interest of their stake
* Who dont participate and need engagement if they can meaningfully participate

2. Demand a stake merely for the sake of being stakeholders
* The stake if any is represented by some other constitutency they can engage in
* The stake doesnt extend beyond "we have a domain and an IP" in some cases
* In some cases the demand for a stake may allegedly be a proxy for others..
http://www.linuxtoday.com/infrastructure/2009071401335NWMSLL (l'affaire OOXML)

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