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The US as Keeper of a 'Free' Internet?

Rudolf Rijgersberg

The imminent expiration date (September 30) of the joint project agreement between ICANN and the US government, establishing the US as unilateral supervisor over Internet's addressing and Domain Name System (DNS) operations, has rejuvenated the call for an internationalization of Internet oversight. The average Internet user, however, is unlikely to benefit from a change in the current status quo as both alternatives, full privatization and intergovernmental oversight, are bound to affect both the Internet's innovative power and the personal liberties enjoyed by its users.

Today's Internet is markedly shaped by the US preference for private sector leadership resulting in a widespread decentralization of responsibilities. As a consequence, states, despite their obvious responsibilities in securing their national communications infrastructures, only play a limited role in matters of Internet governance. Centerpiece of this US policy forms the transfer of DNS responsibilities to ICANN. Although ICANN is operationally self-sufficient and the decentralized DNS structure stimulates competition and innovation, ICANN's political dependence on the US is unacceptable to the international community. Hence, the imminent expiration date of the agreement establishing the US as unilateral supervisor over strategically relevant operations in the global public interest is cause for a renewed call for an internationalization of Internet oversight.

Thus far, the Internet's global success is largely due to the development of innovative products and services by private parties. Innovation forms the key to the Internet's success. In addition to creating economic growth, new products and services stimulate the exchange of ideas on the Internet and offer their users additional ways to disperse their ideas worldwide. Both elements, innovation by private parties (basis for a market economy) and its corollary, a free exchange of ideas (the basis for democratic decision making) form the basis for a free society as embedded in most constitutions. This is why Internet innovation forms a basic ingredient for both domestic and foreign policies. An internationalization of Internet governance, as advocated by the EU and UN, would effectively put the innovative character of the Internet at risk. This consideration should play a more prominent role in the foreign and Internet policies of the individual EU and UN member-states. Instead of viewing US oversight as potential risk to national communication infrastructures, there is much to be said for cherishing the blessings of US oversight and maintaining the current status quo.

The Internet Infrastructure

In addition to affecting its military vulnerability, the Internet's decentralized structure also affects the degree of control that is possible on the Internet in key areas. Consequently, no single state is able to control the Internet unilaterally. Moreover, while both access to the medium and the activities conducted on the Internet can largely be regulated nationally, this is not always possible regarding the functionality of the medium1. Certain aspects demand global uniformity and this particularly holds for the implementation of standards and the Internet's DNS. Standards facilitate communication between computers. Domain names facilitate the way in which users find their way on the Internet. While both further commerce and the execution of government practices, the most important Internet operators in these areas, the Internet Engineering Task Force (IETF) and the Internet Corporation for Assigned Names and Numbers (ICANN), are strongly decentralized private organizations in which state interests only play a marginal role.

The DNS facilitates finding information on the Internet by linking numerical Internet Protocol (IP) addresses, such as 62.177.195.230, to alphabetical names. Different parts of alphabetical names are assigned and maintained by different organizations at different locations. At the top of this decentralized hierarchy is a server containing the so-called 'root zone' information. The root zone information forms a source of power on the Internet because its keeper gets to decide about the availability of specific domains like Palestine (.ps) and Iran (.ir). In order to guarantee the uniqueness of the domain names there is only one organization maintaining the DNS and root zone information on the one hand, and allocating IP addresses and Top Level Domains (such as .ir and .ps) on the other hand. In effect, ICANN holds the key to power over the Internet.

US Oversight and Internationalization

The special position of the US regarding oversight of ICANN's DNS activities has always been a thorn is the flesh of the international community. The imminent expiration date of the contract between ICANN and the US at the end of September has rejuvenated the debate on the internationalization of the oversight role. Pushed by Russia, Brazil and China, the internationalization of ICANN's oversight already formed an agenda point at the 2005 World (UN) Summit on the Information Society. Despite the four specific proposals that were put forward, it turned out to be impossible to reach a consensus maintaining the status quo. As an alternative the Internet Governance Forum (IGF) was founded as a joint platform for states to discuss Internet governance related issues. Despite the umbrella role the IGF was to play in Internet governance, it is increasingly subject to criticism. China has stated not to want to extend the five-year mandate of the IGF beyond its current terms because it feels the IGF seems to lead nowhere and also the EU presented its own proposal for an internationalization of Internet governance in May. Whereas the UN still reserves an over-arching role as Internet governor for itself, the IGF experiment shows its deficiency in reaching the consensus needed to design and implement concrete and effective policies.

At first sight, the EU internationalization proposal seems to offer an interesting alternative to a UN-based proposal in terms of affectivity. Commissioner Reding's May-proposal advocates a complete privatization of ICANN. By separating the technical operations to be handled by ICANN from the political operations governed by 12 regional representatives, the proposal would (1) end the US hegemony on the Internet that is troubling the International community. (2) It would meet the (formal) pro-privatization wishes of both ICANN and the US, and simultaneously (3) the EU proposal would guarantee a larger political role for Europe in Internet governance. In practice however, the EU proposal is unrealistic. Because technical and political decisions go hand in hand on the Internet2, it forecloses the advocated separation between political and technical governance.

Although both proposals for internationalizing DNS oversight may have their pros and cons, the devil is not as much in the details as in the general supposition. An internationalization of oversight creates a centralization of Internet governance with comprehensive features.

Centralization and Innovation

Public responsibilities generally presuppose public accountability mechanisms. However, it is unrealistic to assume that ICANN, as private organization, can offer constitutional accountability mechanisms. This is why international legitimacy, making ICANN accountable to an intergovernmental umbrella organization, is seen as offering a more secure basis for ICANN's operations in the public interest than unilateral American oversight does. It is a viable alternative to democratic accountability on a global scale and it would relieve the US from its hegemonic position. International oversight however, inevitably creates a centralization of Internet governance with comprehensive features. An overarching global structure, whether based on states or on regional representatives from states, creates a power structure potentially able to enforce decisions worldwide, making the Internet governor effectively a global sovereign. Needless to say that such a centralization of Internet governance runs counter to American philosophy underlying ICANN's formation.

A centralization of Internet governance puts the innovative character of the Internet at risk. Political decisions involve technical decisions. The combination of technical and legal enforcement of decisions affects the margins within which new products can be developed. Political decisions inevitably concern standards. Since intergovernmental control inevitably affects technical design and can prevent the development of alternatives, it means that centralization of Internet governance forms a risk for future innovation. Consequently, it forms a risk for the dispersion of the freedoms that form the foundations of the Western political ideal.

Recent telecommunication history shows that states or stately organizations are not always the best candidates for warranting individual freedoms3. Sometimes private organizations happen to be better equipped for this task. Within the context of the Internet, the most important standardization organization, the IETF, is exemplary. When at the end of '99, the IETF, pressured by the US government, discussed the implementation of a standard that would facilitate governmental monitoring of Internet traffic, this option was rejected on technical grounds. The argumentation was that if governments are able to monitor Internet traffic, third parties with less noble intentions are also able to do this, which in turn would create significant security risks. Also during the development of the new addressing standard IPv6 something similar occurred. Primarily developed to accommodate the emerging shortage of IPv4 addresses, IPv6 also contains additional features. One of them is the possibility to link the IP address to a specific machine. This has significant consequences for the privacy of the user since it would enable the retrieval of the computer location and because it would enable the monitoring of the behavior of the Internet users. The IPv6 standard, developed by the US government has stirred a lively debate amongst technical expert and civil society groups until IBM and Microsoft developed an optional privacy-enhancing standard that can be used in combination with IPv6.

It is striking that also in this case government wanted to diminish individual freedoms cherished by the private initiatives. In other words, decentralized governance, whether provided by markets or decentrally operating organizations like the IETF, sometimes seems more capable of guaranteeing individual liberties. The examples here concerned American initiatives. How welcome would these proposals be in countries like Russia and China?

Markets and Power

In addition to the risks that a centralization of Internet governance would create, the technical and economic reality in which ICANN operates also puts the call for an internationalization of DNS supervision into perspective4. The reason is that in addition to creating a 'marketplace of ideas', the information revolution also created a democratization of the means to participate in this communication exchange. The widespread availability of both the technical means and the necessary knowledge to build and maintain communication networks and DNSs, makes the call for stately accountability mechanisms (such as traditional democratic participation or intergovernmental oversight) superfluous. Both ICANN's power and the alleged power of the US over ICANN's root zone information is considerably restricted by the availability of alternative options.

The democratization of technical devices has created an availability of computers that can function as domain name servers and are equipped with copied information of ICANN's root zone server. The omnipresence of such servers able to operate independently from ICANN, prevents disastrous accessibility problems on the Internet, for example, when ICANN would make an error or in case the US would force ICANN to pull the plug on the Chinese domain, .cn. The democratization of devices also enables the creation of entire alternative DNSs (shadow systems). The fact that no stately organization has made use of this opportunity to secure their national interests, shows us something about their risk assessment. This is also confirmed by private initiatives. The most important European initiative, the Open Root Server Network (ORSN), which ran parallel to ICANN's DNS since 2002, discontinued its activities at the end of 2008. In addition to the stately players, the private financiers of the OSRN also turned out to see no avail in maintaining a shadow system. The only conclusion that can be drawn from this is that, in addition to a negligible power of the US, also in the eyes of the private financiers ICANN, as private party, has been rather successful in promoting the public interest.

Implications for National Policies

The future of the Internet depends to a large degree on the way in which both the DNS and Internet standards are managed. ICANN plays a key role in these processes. Because of the national interests that are at stake, it is important for individual states to develop a clear vision regarding the development of the Internet and the way it is governed. The situation in terms of technique, power relations and transnational interdependence, significantly complicates matters. While the current configuration of governance is unsatisfactory from a state perspective, the market perspective is not fully satisfactory either since the DNS market can hardly be characterized as situation of perfect competition with many suppliers that have equal access to the market. On the other hand, the lack of interest in alternative systems as a counterweight to ICANN's power, indicates that ICANN as private corporation has gained a certain amount of legitimacy from the perspective of the Internet community.

From a political point of view, the situation can best be characterized as a deadlock. On the one hand, the longer the US will retain its special status, the stronger international pressures will become. On the other hand, while the increased international pressure improves transparency and stakeholder participation within ICANN, it also increases US resistance to complete the privatization process. After all, the chance that a completely privatized ICANN succumbs to intergovernmental pressures increases proportionally to the amount of international pressure that is being put on ICANN as DNS governor. In fact, the US, through its agreement with ICANN, maintains the decentralized and private character of Internet governance while simultaneously saving ICANN from running the risk to fall prey to stately intrigue. In addition to keeping ICANN out of the wind in terms of intergovernmental pressures, the US hands-off approach, informed by political conviction combined with intergovernmental and market pressures, guarantees an independently operating ICANN. In turn, the US' inability to enforce their Internet policies worldwide, guarantees that individuals will always be able to develop new products and services.

Although the current situation may not win a beauty prize from a variety of perspectives, balanced against the risks of a centralized type of Internet governance, the current situation may be the best of possible worlds. By guaranteeing a degree of individual liberty through a decentralized governance structure, the Internet maintains the innovative character that forms the basis to its success, a situation that affects every Internet user and even affects the liberties enjoyed by users in Internet restricting countries. This observation should play a more prominent role in the foreign and Internet policies of individual EU and UN member-states. In addition, an optimization of the conditions for innovation on the Internet offers important opportunities for individual states to actively contribute to the developing Internet.

In conclusion, the current situation with the US as keeper of a relatively free Internet, is to be preferred to a global monopolist created by intergovernmental supervision. Instead of viewing US oversight as a potential risk to national communication infrastructures, individual states should cherish the blessings of US supervision and seriously consider maintaining the current status quo by actively promoting yet another extension of the joint project agreement between ICANN and the US government.

---
1 Erikson J. and Giacomello G. (2009 ) 'Who Controls What and Under What Conditions?' in forum Who Controls the Internet?, International Studies Review 11/1 p.205ff
2 LESSIG, L. (2006) Code: version 2.0, New York, Basic Books.
3 See Diffie & Landau (2008) Privacy on the Line: the politics of wiretapping and encryption, Cambridge, MA., MIT Press. P121ff.
4 De Vey Mestdagh, C.N.J. & Rijgersberg R.W. (2007), 'Rethinking Accountability in Cyberspace, a new perspective on ICANN', in International Review of Law, Computers and Technology 21/1 p. 27-38.

By Rudolf Rijgersberg, Research Fellow Netherlands Institute for International Relations 'Clingendael'
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Nothing of substance here Milton Mueller  –  Sep 16, 2009 1:50 AM PDT

Thanks to Mr Rijgersberg for what is (superficially at least) a calm and well-considered discussion of one of the primary problems facing governance of the Internet. But after reading this piece it seemed increasingly clear that there is very little substance to it. I agree with his rejection of the option of internationalized, intergovernmental "oversight" of ICANN. But then, almost everyone involved in ICANN and Internet governance already rejects that. WSIS itself basically rejected that. The only advocates of that are Russia and China, as far as I can tell.

The severe weakness in this piece is that he does not seriously assess the consequences of US unilateral oversight, nor consider seriously any alternatives to it. He simply leaps to the conclusion that if intergovernmentalism is wrong and potentially destructive, then the status quo must be fine. Rijgersberg seems to be completely unaware of the extensive literature on this topic; let me refer him to the work of the

And if government power over the Internet is dangerous, please tell me how the unaccountable GAC, which is an internalized form of intergovernmentalism, but lacking in any of the normal checks and balances of government action, is not a threat, too?

I would encourage Mr. R. to do a bit more homework before weighing in on such a topic. You need to read a bit more than Lessig's Code 2.0 to get there.

Well - do you think the JPA / other forms of USG oversight are going to suddenly go away? Suresh Ramasubramanian  –  Sep 23, 2009 5:34 PM PDT

Somehow, I think not. I seriously doubt USG oversight is going to cease at all - and you won't get either industry or civil society stepping into the vacuum if oversight does cease by the way.

I predicted much the same in May in response to your post here and I see mike roberts agrees with me in his followup.
http://www.circleid.com/posts/20090517_will_obama_re_nationalize_icann/

Thanking mr Mueller for his subtle comments. Rudolf Rijgersberg  –  Oct 01, 2009 5:45 AM PDT

Thanking mr Mueller for his subtle comments. Let me provide a short reply. I agree the post did not give a full scale review of the scholarly landscape surrounding Internet governance issues, the post wasn't meant to do so. It was merely aimed at pointing out the interesting role of the US in DNS governance. I appreciate the scholarly work of the IGP of which I am well aware. Nevertheless, we disagree on a few fundamental points.

In my humble opinion, the recent EU proposal suggest to me that not only Russia and the China have problems with the US role and that an internationalization is still an option considered by powerful players. Even if only supported by China and Russia, it would still justify such a discussion on the grounds that they represent over 20 % of the world’s population and Internet users with an enormous potential for growth.

Also on the potential split in the Internet we disagree. One could argue either way in this respect. In a sense the internationalization of the domain names and the use of different sign systems inevitably compartmentalizes the Internet to some extent and the Chinese addition of domain names combined with the Great Firewall already has. My contention, however, is that the network benefits of all parties involved are such that it is likely to keep the Internet alive as global communications structure even with its practical limitations.

I strongly disagree with mr Mueller’s suggestion that somewhere down the line I committed what is commonly known as the ‘naturalistic fallacy’ that is deriving normative conclusions form empirical obervations. The point is not that the US is the benign keeper of a ‘free’ Internet, far from it. The point is rather that the US by its limited territorial reach combined with the interational pressures simply doesn’t get the chance to impose their policies on the Internet unilaterally. The issue is rather that, intergovernmental oversight creates a potential for total control of the Internet because it combines a legal and technical enforcement of policy decisions worldwide. It is this combination that potentially harms the Internet’s freedom particularly since the nature of territorial governance is such that it always needs to balance national security concerns against individual rights. The international pressures US and ICANN in check and ensure the realization of more transparent and responsive mechanisms to include the global Internet community in its decision making mechanisms. In this sense is the US a keeper of a free Internet, not out of free will but forced through its circumstances.

I am sorry that my post, indeed very limited in scope, has led to confusion. I thank mr. Mueller for his comments leading me to somewhat clarify the scope of the post and views on the matter.

Privatization considered harmful Alessandro Vesely  –  Sep 16, 2009 4:51 AM PDT

One consideration that stands out while reading Rudolf's intriguing picture of the current situation, is that we don't currently have an alternative to privatization. Lexically, I mean: "Private" conveys the meaning of belonging to individual persons, the opposite of public. Of course, we want the people to be their own masters on the Internet. The above observation that sometimes private organizations happen to be better equipped than public ones for warranting individual freedoms may appear as a contradiction, in this respect. Not all private organizations warrant freedom. The fact that we don't even have a term to describe what we want, indicates that there is still much to be done to complete the information revolution.

The IETF, with its free participation and rough consensus, may appear somewhat more democratic than ICANN. As it develops Internet standards, perhaps it would make more sense if it were able to establish legal criteria and lobby national governments for ratifications, rather than being overseen by them. Such kind of relationship might resemble how the EU internally works. However, I think neither the IETF nor national governments would favorably consider such an arrangement.

Finally, let me mention one aspect that space limitations probably restrained Rudolf from considering: Software. Much of the freedom that the information revolution enjoys derives from the Free Software Foundation, the GNU project, and similar open source initiatives. Their software provides a further characterization of how individual freedoms can be warranted. And, talking about DNS, let me exemplify IDNA and Intersem, which operate just on software.

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