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Forgotten Principles of Internet Governance

Karl Auerbach

Suddenly internet governance has become a hot topic. Words and phrases fly back and forth but minds rarely meet. We do not have discussion, we have chaos. We are not moving forwards towards a resolution. It's time to step back and review some basic principles.

1. Principle: The internet is here to serve the needs of people (and organizations of people); people are not here to serve the internet.

Corollary: If internet technology does not meet the needs of users and organizations than it is technology that should be the first to flex and change.

Of course there are times when human practices deserve to change, but that change ought to be driven by human needs rather than being coerced in order to preserve a mutable, but ossified, technology.

For example, consider the arguments over competing DNS roots. There are those who say that there must be one catholic root and name space. There those who advocate overlapping name spaces that are consistent within each top level domain but in which there may be greater or fewer top level domain choices provided by different roots. This argument is driven in part by concerns that flexibility in name spaces will cause failures of a technical nature. The argument is also driven in part by social concerns over the potential ability of people to communicate with one another should there be flexible (and thus to a larger or lesser degree different) name spaces. That latter, social, argument is where the debate should occur; we should all accept the premise that if we want flexibility that the technology of DNS should adapt (assuming that DNS is, in fact, fragile and susceptible to failure - which, if true, would raise questions about the adequacy of DNS technology given the fact that anybody, anywhere can, without permission from anyone, set up a DNS root and name space.)

Corollary: People are the atomic unit of governance.

People may form themselves into groups - such as for-profit corporations or churches - but those are merely derivative forms. We should allow people to speak for themselves in the forums in which decisions of internet governance are made and not require that they act through artificial proxies.

The term "stakeholder" ought to be abandoned because it forgets that at the bottom of things, all organizations and groupings are aggregations of individual people each with his/her own point of view. Such organizations ought to have authority to express an opinion in the forums of internet governance only to the degree that that organization can obtain voice by convincing individual people of the worth of that opinion. The term "stakeholder" is a mental straitjacket that presupposes and prejudges that some people (by virtue of the organizations with which they are associated) are more equal than other people who lack such associations.

2. Principle: Every person shall be free to use the Internet in any way that is privately beneficial without being publicly detrimental. The burden of demonstrating public detriment shall be on those who wish to prevent the private use. Such a demonstration shall require clear and convincing evidence of public detriment. The public detriment must be of such degree and extent as to justify the suppression of the private activity.

(I have frequently called this "The First Law of the Internet”.)

Corollary: Innovation may come from users as well as from standards bodies.

The internet is not yet done; innovation should be accepted. Innovation ought to be not merely allowed but it should also be encouraged. There is always a downside risk from innovation, but the mere assertion that there might be, or even is, a risk is not enough by itself to deny the right of innovation to anyone.

3. Principle: The first step towards governance is a clear understanding of what it is that needs to be governed and what the goals of that governance are.

Today there are a lot of people who talk about "technical coordination" or "technical management" without understanding what those terms mean, if anything, when taken out of the clouds and reduced to concrete actions.

We should clearly understand, for example, that the role of establishing terms of registration contracts for domain names and setting domain name registry prices is economic regulation, not technical regulation. In fact the whole model of domain name registries and registrars is an economic and business choice, not a technical one. (See, for example, my note on an alternative structure - The .ewe Business Model - or - It's Just .Ewe and Me, .Kid(s))

It is as important to define the goals of governance as it is to define the subject to be governed. Without a clear goal an institution of governance may easily misconstrue its mission.

Corollary: It is appropriate to question an assertion about whether a matter is "technical coordination" or is really economic or political policymaking traveling in disguise or is an assertion made to avoid handing the reins of innovation over to a new generation.

Internet governance is a high stakes game. There is much to be gained and much to be lost. We are observing today a face-off between the United States and much of the rest of the world gathered in the WSIS/WGIG proceedings. It is obvious to all, but few will say it, that in this confrontation the issues of internet governance are stalking horses for concerns of national power, national prestige, national security, cultural protection, and economic dominance.

4. Principle: Form follows function.

Each institution of internet governance should be designed to fit tightly around one clearly articulated issue. Broadly defined institutions of governance are an invitation to "mission creep". Tightly defined institutions are more easily monitored and they will cause less damage should they wobble off course.

[For a deeper view see my 2004 presentation Governing the Internet, A Functional Approach. Also see my 2002 note, A Plan To Reform ICANN: A Functional Approach. Similar suggestions have been put forth my several other observers.]

The question of governance and how the powers of governance should be shaped and limited have been considered by many brilliant minds. Might it be useful to re-open the books of the history of these 18th century thinkers and refresh our understanding of how institutions of governance ought to be shaped so that their internal tensions and procedures lead to stable and limited behavior?

Corollary: Sometimes a job of internet governance is already the responsibility of an existing entity or set of entities.

There is a tendency on the part of some to consider that anything associated with the internet is new and unique. In some few cases that may be true, but for the most part the internet simply adds a new shade to an existing portrait.

Take for example the so-called "Uniform Dispute Resolution Policy", the UDRP. This has become a de facto law of internet domain names. The UDRP is often the first, and too often the last, stop in a dispute over a domain name. Yet this UDRP was formulated and imposed by a body that has no authority to enact legislation for any one, much less all, nations. It is often forgotten that there do exist many bodies in which the authority for enacting such laws has been vested: the national legislatures of the individual nations. In many regards the imposition of the UDRP was an act in which the authority of existing nations was to a degree overthrown and replaced. The imposition of the UDRP was not so much an act of governance as it was an act of revolution.

By Karl Auerbach, Chief Technical Officer at InterWorking Labs
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Re: Forgotten Principles of Internet Governance Suresh Ramasubramanian  –  Oct 23, 2005 8:36 AM PDT

Prove that alternate roots are going to meet your vaguely defined "needs" rather than lead to complete chaos and groups of people each touting their own set of TLDs, none of which the users of some competing system can reach [terms of reference - see how one of those can reach critical mass, and what shape and form it will achieve once it reaches critical mass, then compare it to the existing dns root structure]

Then in that other charming rant about abolishing the word "stakeholders" (rather pointless, that) all you are suggesting is that the opinion of each person should count, rather than each organization. What you really should try to do is to gather together a bunch of people who think the same as you do and form a new organization, walk into wsis with that. Or try to influence change in the old organization .. though as you are talking about ICANN I do realize you'll simply repeat your views that ICANN should be completely demolished and replaced from the ground up.  Oh well.

As for the UDRP, giving it its due, it is uniform. And its workings aren't subject to the variations of potentially hundreds of different courts and legislatures.  On the other hand, have you noticed that UDRP proceedings are quite often accompanied by lawsuits under trademark infringement laws (for example), in local courts? 

As I kind of expected, your article is Interesting but charmingly impractical collection of rants.  God knows the current situation is bad but what you're suggesting is going to only make it far worse.

Re: Forgotten Principles of Internet Governance Karl Auerbach  –  Oct 23, 2005 11:27 AM PDT

Thanks for so clearly illustrating my point about hidden-agendas masked as techno-speak.

The portrait of the internet future you paint is one that is very dreary: Users get neither voice nor choice.  The end-to-end principle is only for the privileged.  Local and national authority are superseded by industrial combinations.

It is authoritarian viewpoints such as yours that require the first principle of internet governance be a reminder that the internet is for the benefit of its users, not vice versa.

Re: Forgotten Principles of Internet Governance Suresh Ramasubramanian  –  Oct 23, 2005 6:59 PM PDT

Karl, no hidden agenda here as such. Merely tired of your vague ranting that you like to think is technospeak.

Heard much of it before too, and I'm sure I'll hear it again, in one blog or the other. But circleid has a rather higher standard of discussion than that is what I'd fondly imagine.

Politics and technical issues dont mix, its said. But given the currently politicized situation, I'm much more in favor of improving the governance of at least some of the key stakeholders, from within. What you are suggesting is what the anarchists used to suggest - that the situation is so broken that nothing except demolition and ground up reconstruction is going to help.

And that still doesnt answer my question about the root servers.

-srs

Re: Forgotten Principles of Internet Governance Joe Baptista  –  Oct 24, 2005 4:14 PM PDT

QUESTION: Is a TLD intellectual property?

ANSWER = YES.

When a TLD is created it relies on a database to operate.

QUESTION: Is a database intellectual property?

ANSWER = YES.

QUESTION: What intellectual property laws govern a TLD.

ANSWER = Copyright law.

END OF DISCUSSION.

Re: Forgotten Principles of Internet Governance The Famous Brett Watson  –  Oct 24, 2005 7:01 PM PDT

Domain names are governed by copyright, because databases are intellectual property? That's a frightfully simplistic analysis, Joe. In fact, it's such a non sequitur I'm almost at a loss as to where to start criticising it. It's like saying that the proper legal doctrine to cover business names is copyright because the USPTO maintains a database of trademarks.

Intellectual property laws serve as a means to an end. That end is often subverted by powerful vested interests who see the law as a way of maximising return on minimum effort (e.g. retroactive copyright term extensions), but ideally the laws are supposed to produce generally desirable social effects. They are intended to "promote the sciences and useful arts", or facilitate honest trade (in the case of trademarks).

I think Karl's Principles of Internet Governance are resoundingly impractical, but at least they recognise the need for describing the end that the means is supposed to reach (see his point number three). Your comments completely ignore this aspect of the issue and evince a deep misunderstanding; they are the kind of remarks that would make an experienced law-monger roll his eyes at your ignorance, in the same way that technologists roll their eyes when someone asks where the Internet is.

Re: Forgotten Principles of Internet Governance Suresh Ramasubramanian  –  Oct 24, 2005 7:14 PM PDT

Fully agree with Brett - you aren't going to find copyright law very useful or applicable.

I think Karl’s Principles of Internet Governance are resoundingly impractical, but at least they recognise the need for describing the end that the means is supposed to reach (see his point number three).

Karl's point #3 - Well, even a clock is right twice a day - but seriously, there is (using more wsis type terminology) a broad consensus on Karl's point #3.  The difference of course is in people failing to agree on the goals, and the way these are to be achieved.

Re: Forgotten Principles of Internet Governance Joe Baptista  –  Oct 27, 2005 8:13 PM PDT

I agree with Bret Watson when he states that my remarks on TLDs being databases and by default covered by copyright law is "a frightfully simplistic analysis".  Yes indeed it is.

But I see no logical critism or any point made by my critics which clearly states what is wrong with that analysis.

I expect the only frightfull aspect of this is that no one ever figured it out in all these years of argument.

Any lawyer out there who would care to challenge this analysis.  Karl - you game?

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