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Rewiring Internet Governance: Summing up ICANN Policy Walking Backward Into the Future (Part 4)

Frederick Harris

So-called "globalization" and its corollaries which are trade policy and, thus, foreign policy intersect with telecommunications. This ought to be obvious and it is not new. For example, in December 2011, OECD adopted its "Recommendation of the Council on Principles for Internet Policy Making”, the latter which apparently connects with an earlier U.S. cyberspace strategy based on something called the "Internet Freedom Agenda" dated 21 January 2010, where comments from the (then) U.S. Secretary of State arguably entrapped U.S. internet governance in an orifice from which it has yet to emerge. Namely: "On their own, new technologies do not take sides in the struggle for freedom and progress, but the United States does (emphasis added). We stand for a single internet where all of humanity has equal access to knowledge and ideas".

The world moved on. But, U.S. foreign policy in 2010 which is itself a historical artifact of "containment" and thus a Cold War mentality derived from George Kennan's foreign policy era, was even at that late stage out of touch with the Internet. Enter the Organization for Economic Cooperation and Development (OECD) and its "Guidelines for Multinational Enterprises” (MNEs).

OECD guidelines are recommendations. The word "recommendation" amounts to a policy except that it doesn't say so. OECD "helps" governments: specifically corporate interests. According to the Electronic Frontier Foundation (EFF), OECD is a "policy-making body that sets international standards on a wide range of issues including communications technologies and the future of the Internet [in the interests of] 34 member countries, which include mostly developed nations, but also emerging states such as Mexico, Chile and Turkey." Another way to say this is that OECD has considerable persuasive influence on U.S. policy-making applied to the behaviors of multinational corporations.

However, OECD recommendations "cannot be enforced through legal action against a MNE or applied as law in any international court". Its purpose is to address "structural problems by requiring adhering states to promote a set of principles, rather than seeking to hold corporations directly accountable for their actions" (Francoise, 2007). Thus, even if OECD has no legal authority, it functions as an economic policy instrument that can set international standards including protocols that might substantively impact Internet.

The appeal of a "recommendation" from OECD stems from geography. All sovereign states have physical borders. However, the illusion of a border less noösphere (Teilhard de Chardin, 1926), ignores OECD reality. Equitable information access is now and will likely remain a function of the ideology of the empire of business, and everything it represents, including globalization. Therefore the idea of a politically neutral Internet that accommodates "equal access" by all humanity to the benefits of world wide knowledge, is a dream. In other words, an OECD recommendation reflects a humanistic perspective that becomes a weasel-worded cliché: a smoke screen that ties global internet access to the notion that globalization in and of itself can somehow accommodate what Goldsmith and Wu refer to as "peoples in different nations...[who] have different backgrounds, preferences, desires and needs".

Also, OECD's egalitarian pretension is that it conveniently ignores the political reality that while OECD incorporates the advanced industrial economies, it also excludes China, India, Russia, Brazil and most developing economies in Africa and Asia. Thus, the concept of uniform access to a neutral information ecology that incorporates crime free security and privacy regardless of a country's political system, exists in an imaginary interstice between political fantasy, economic fabulism and technological utopianism, none of which comports with contemporary reality.

Moreover, equitable access is a worthy idea that ignores not only the Internet as we know it, but all other antecedent mass media that have replicated U.S., Canadian and some European economic models. Whether those models are good or bad is the subject of another debate, although it is fair to say that in every case Newton Minow's NAB Vast Wasteland speech (1961)about television has trumped public access. What is demonstrably apparent is that the economic determinism which has driven previous media models is the contemporary template that fits nicely with ICANN's incipient megalomania guided entirely by laissez faire. ICANN's delusional five year (2014-2018) "mission and core values and for building out the base of internationally diverse, knowledgeable and engaged ICANN stakeholders, especially within the developing world..." is a figment of the institutional ambitions of persons responsible for ICANN administrative policies that, if left unchecked, will bifurcate Internet and thus obviate or make it difficult to subsequently introduce uniformly acceptable regulatory policies. Those ambitions might also undermine the work of ICANN's peer institutions that support the goals of the Montevideo Statement on the Future of Internet Cooperation” (October 2013).

Internet Policy Past and Future

Whatever its' potential, Internet steering at present reflects the "delegation dilemma” identified by Shapiro (1994) and subsequently fleshed out by Fukuyama (2013) as the "bad equilibrium” that apparently unsettles a broad array of U.S. governance activities at present. (See Part 3). Clearly, NSA activities have now entered the debate alongside related questions about personal privacy, and security, when the antics of multinational corporations that for practical purposes are internet oligopolies are factored into the mix.

At the center of the maelstrom, as has always been the case, is ideology and therefore legitimacy and thus the extent to which the rest of the world will indulge U.S. hegemony by consenting to unilateral control over the addressable Internet. Sometimes the debate appears centered around technology; for example, around encryption algorithms to protect people from the intrusive activities of companies that track the commercial and other behaviors of human beings. But even though the controversies that garner the most attention are about people squeezed by the bookends of big government and big data, the real battle which occurs below the public attention threshold is about policy, politics and power.

The core of ongoing controversy about internet governance resides in an ideological battle that arises from radically different perspectives on how to thread the public interest needle: whether from government institutions or from subordinate entities as is the case with the ISO 3166 country-code (ccTLD) delegations, or whether something as potentially transformative as the global nexus of peer-to-peer technologies ought to be left a) to bureaucrats and technocrats; or b) whether an ITU-type of institution is most appropriate; or c) as in the U.S. in particular, whether day-to-day regulation ought to be left to no regulation, meaning the ICANN laissez-faire governance model supposedly driven by multi-stakeholder consensus and helped along by the disastrous decision from the U.S. Government (NTIA) on 30 September 2009 via the Affirmation of Commitments (AoC) agreement to let the public interest sing in its chains at the mercy of ICANN.

The tempest arises from wholly incompatible world views about governance that have different ideological stripes. Governance is always steered by competing interests; but here the dilemma is transparent. Can something as inherently dynamic as capitalism and progressive technology, both of which are inherently disruptive, be engaged such that when the stabilizing effects of democratic principles are applied the three of them can be leveraged to simultaneously promote a form of economic prosperity that produces both private and public "goods"? The answer in theory is "yes"; and it is not necessary to here provide examples which are everywhere self-evident.

However, problems occur when there are structural incongruities such as those that are identified by Fukuyama in reference to a present U.S. governance dilemma, meaning that Americans in general distrust their federal government; and they don't care to delegate authority to it for good reasons, among them complicated governance rules that work like a self-fulfilling perversity which then reinforces the mistrust. (See Part 3). That particular predicament which arguably belongs in the twin realms of cultural anthropology and political sociology, also mirrors the policy conundrum that confronted the U.S. between, say, 2005 and 2010 where the expanding economic relevance of the internet, when coupled with its political sensitivities, produced the dead-end occasioned by the U.S. Secretary of State on 21 January 2010. Namely: "[o]n their own, new technologies do not take sides in the struggle for freedom and progress, but the United States does. We stand for a single internet where all of humanity has equal access to knowledge and ideas" (See Paragraph 1 above).

One might imagine that surely the U.S. Government, having been previously and repeatedly informed by the George Kennan edict that "[g]overnment is an agent, not a principal, would be sensitive to making value-laden policy pronouncements about internet governance. Kennan viewed a government's primary obligation as the interests of the national society it represents, not to the moral impulses that individual elements of that society may experience." (Kennan, 1985). In other words, and as Kennan pointed out, governance is about the "integrity of its political life and the well-being of people". Time and again Kennan's canonical injunction has driven U.S. policy; namely, that policy is not about morality. So why not allow a non-judgmental sensibility drive internet policy? Instead of doing that, the rule makers insisted on trying to conflate the historically distinctive and uniquely American preoccupation about "freedom" with a moral precursor to policy-making. Instead of political pragmatism, U.S. internet policy stumbled into a quick sand that ICANN assiduously exploited in its own self-interest, thereby committing U.S. internet policy to a present trajectory that does not and will not sit well with much of the world outside OECD.

Walking Backward Into the Future

I will now provide my own summary of the ICANN governance dilemma which is the problem that the U.S. Government created for itself and which the government when it is convenient to do so, can alleviate if it chooses. I have previously looked at the ICANN predicament in Parts 1, 2 and 3.

As previously mentioned, ICANN's delusional governance ambition is driven by a policy goal, likely from desperation, that seeks to ensure its own institutional survival by creating a commercial stranglehold on the Internet outside of the country code (ccTLD) top level domains.I have also dealt with that in Part 2. ICANN is in the process of the choke hold by enabling the creation of hundreds upon hundreds of gTLDs, most of them controlled by private interests. Arguably, that particular scenario happened because of irresolute U.S. internet policy. That's the down side. The upside is that any one or more of those new gTLD monopolies are potentially subject to elimination by the stroke of a bureaucratic pen. Could it actually happen? Perhaps so. ICANN is a private corporation, but the U.S. Government still has a leash. And, absent U.S. intervention, there is always the additional danger that ICANN already driven by greed and the possibility (in its own mind) of a privatized Internet subordinate to ICANN policies could, if it chose, attempt in future to extract additional profits, say, by imposing additional tariff burdens on domain registrants and registrars, such as an advertising levy, or something similar.

I have previously noted that ICANN dwells in a fantasy world where the ideology of the empire of business coexists with the public interest. However, I have also clearly separated ICANN from its institutional peers such as Internet Architecture Board (IAB), Internet Engineering Task Force (IETF) , Internet Society (ISOC), World Wide Web Consortium (W3C) and the RIRs, all of which have apparently "turned their back on U.S. internet governance".

It is important to also emphasize that the fantasy world inhabited by ICANN is inadvertently reinforced by a mind set that complicates the policy process with "recommendations" such as those that emanate from OECD, as well as other sources that persistently view policy problems as if the gravamen of the Internet's governance dilemma derives from either/or "actors"; in other words, mere interest group accommodations that outline a problem within governance, but offers no solution because it reduces to a multistakeholder model versus intergovernmental model.

The anchor that drags U.S. policy into quicksand can not be seen in present language from the Internet Governance Project (IGP, 18 December 2013) which in part reduces to either/or arguments about what's best. The part of the IGP analysis that resonates is this: "[m]ost of the problems we currently have in Internet governance can be traced back to this dispute about the roles of different actors....[But the this or that dispute] actually understates the importance of this debate to call it a debate between the "multistakeholder model" and the intergovernmental model. It is really an inflection point in the nature of governance institutions… [which consists of] a radical challenge to sovereignty and the state system. It locates sovereignty in the individual and creates a global polity through which that popular sovereignty can be exercised."

That part of the analysis is right. Whatever else the IGP "inflection point" means to IGP, to me it means by locating the internet governance enigma in the nexus between political freedom and economic progress hitherto defined and guaranteed by technology, capital and human ingenuity; and, however compelling its attraction as a moral proposition — for the U.S. to follow without reservation the idea that sovereign persons against sovereign governments is the core of the governance problematic would be politically naïve and certainly not pragmatic. Such would only transfer the "bad equilibrium" that Fukuyama apparently sees as a foundational problem in U.S. political culture, to the Internet.

Moreover, the argument appeals primarily to technology and the radical challenges to political and human sovereignty enabled by telecommunications. One can already see the inadequacy from political developments during the so-called "Arab Spring" as well as from the contemporary domestic fallout occasioned by NSA intrusions into personal privacy in the U.S. and elsewhere. If there's an ongoing paradigm shift in how institutions deal with governance, either now or in future, a more likely account for the transformation, when it occurs, will be in a general recognition that both economic fabulists and technology utopians are misguided when they fail to see past the ideological policy blinders that Kennan had cautioned about and that at least in terms of internet policy the U.S. has apparently forgotten. Better governance coincides with political pragmatism.

Ideological blinders is the very thing that cripples internet policy in ICANN, except that in the latter case policy is also misguided by hypocrisy, stupidity, incompetence, and greed. ICANN marches backward into the future. It identifies itself with a governance model that replicates previous U.S. telecommunications monopolies by allowing big data oligopolies to replicate their big media equivalents from. This is what Newton Minow's lament over television's "vast wasteland" can teach us about letting ideology overcome common pragmatism.

McChesney (2013) notes that Internet is "swarming with mostly anonymous and unaccountable companies tracking everything that moves." Crawford (2013) points out that "the long twilight struggle" of regulatory supervision in the telecom industry created incumbent monopolies (that are thus mirrored by ICANN) in that they subordinate "fast adopters and innovators" to a similar telecommunications environment that seems hell bent on preventing innovation from any entity perceived by ICANN as interfering with corporate profits. Goldsmith and Wu point out that "[t]here are systemic reasons why elected governments sometimes fail to do what is best for their citizens ... [because] well organized factions have a disproportionate influence on what laws government passes."

In ICANN's case, what government has achieved through neglect, or at best benign supervision, is a policy vacuum that was quickly noted and acted upon ICANN and its benefactors. The ICANN version of internet policy is a legal curiosity where almost anything goes, money talks, and where ICANN deliberately ignores, subordinates and brushes off those who actually provide its mother's milk, meaning revenues from what amounts to TLD licensees and their registrar businesses that sell domain names.

ICANN is a policy disaster that will likely result in its demise for the simple reason that internet policy which remains "governed" by NTIA under U.S. Commerce Department, is in the real world subordinate to trade policy in particular and thus foreign policy, and therefore it is naïve and unrealistic to imagine that ICANN as a practical matter can not and will not be jettisoned by the U.S. Government, if required.

To some extent the process has already begun, if one takes in consideration the apparent goals of the Montevideo Statement on the Future of Internet Cooperation" in October 2013. To the extent that the Montevideo framework might be regarded by some as "turning one's back" on U.S. governance at present, such should not be construed to mean eliminating common sense in favor of laissez faire. The first and perhaps obligatory step is for government in the U.S. to get rid of ICANN and do it soon before its policies split the internet into political fragments.

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