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In folklore, King Arthur's claim to the throne of England was made legitimate by his ability to remove the sword from the stone. Like King Arthur, the various bodies now attempting to participate in governance of Internet operations and applications must establish the legitimacy of their claim to governance authority if they are to be successful. To date, Internet organizations have not paid sufficient attention to the need to persuade the Internet community and the general public that they have the authority to govern. King Arthur demonstrated the legitimacy of his claim by performing a feat of strength and cunning; Internet governance bodies must establish their authority through political means. To win public perception of legitimacy, parties must demonstrate that they have a legal foundation for their claim, political support for their policies, and the functional capability to enforce their decisions. Failure to establish a public perception of legitimate authority will lead to a failure of governance that will likely delay the expansion of useful Internet applications and make the Internet environment chaotic and confused. In the complex environment of the Internet, the authority to govern cannot be assumed, but must instead be earned. Like King Arthur, those who would govern the Internet must work to earn the respect of the community they would lead.
In an era when many different people sought the throne of England, King Arthur distinguished himself from the other would-be kings by demonstrating the rightful nature of his claim to the throne. Arthur accomplished that feat through an act of strength and cunning: by removing the sword from the stone. At present, the Internet community seeks its true leaders. Those who would ascend to that role must, like King Arthur, prove to the public that they have a rightful claim to leadership. Various governments and organizations around the world are competing for the right to participate in Internet governance. The result of that competition will profoundly affect the scope and form of Internet operations and applications for many years to come. The questions of who is entitled to play the leading governance roles and whether those parties will be able to command international compliance are issues of critical importance to the global Internet community. The key challenge now facing Internet governance is: Will the Internet find its King Arthur quickly or will it face an extended period of struggle as competing pretenders to the throne work at cross-purposes and battle each other for the right to govern? The stakes in this conflict are significant. If effective Internet governance develops, a climate of certainty and security will provide the incentives necessary for businesses and individual users to continue to make significant resource investments in Internet applications.
In contrast, if there is a failure of governance, expansion of the Internet and its applications will be slowed as few parties will have the confidence necessary to invest immediately in Internet activities. Also, the confused environment associated with a leadership vacuum would lead to inefficient technological actions and chaotic business models for the Internet. Effective governance is an element of critical importance to the long-term commercial success of the Internet.
At present, several different types of organizations are asserting at least some form of influence over Internet governance. The ultimate roster of Internet governance bodies will include entities from each of the groups discussed in this section. The open issue for the next few years will be the competition among these different groups of organizations to stake out and hold Internet governance roles. As time passes, we will begin to see which organizations from these various groups will establish leading Internet governance roles. We must remember that the governance roles will likely take different forms. The most commonly recognized governance functions involve establishment of standards (e.g., technical or operational standards). In addition to standards, governance can also take the form of regulation of Internet conduct (e.g., regulatory bodies or courts with their jurisdiction over disputes). Governance functions are also performed by the entities that provide the service and products that make Internet operations possible (e.g., providers of Internet access, Web site hosting, data networking equipment). Only if those product and service providers recognize and abide by the requirements imposed by governing bodies will those bodies have any true governance capability. We thus see that the constellation of governance players is, and will continue to be, diverse. The diverse group of Internet governing bodies must develop methods to coordinate their efforts to avoid conflicts and confusion.
Governments in each country form one key set of Internet governance players. Actions by governments have a direct impact on Internet operations. This category includes national legislatures, regulatory agencies, and courts in each country. The category also includes regional governments (e.g., state governments in the United States) and local governments. Governments will play a key role in Internet governance in at least two ways. First, they will be directly involved in the development and implementation of regulations and policies to govern Internet activities, and they will be involved in the resolution of disputes that arise from Internet activities. In addition, they will be key players in the efforts of other types of organizations (e.g., international organizations, private commercial groups) to create governance roles, as the governments will be the source of the legal and political support necessary for those other groups to establish their legitimacy. There can be little doubt that governments will play a significant and continuing role in Internet governance for the foreseeable future, as they will both be governing bodies and have significant influence over which nongovernmental organizations will be able to develop public credibility sufficient to support roles in Internet governance.
The factor most likely to limit the governance role of governmental bodies is the scope of their jurisdiction. The jurisdiction of governments is relatively clearly defined and well-established. This means that the limits of their ability to control Internet functions are also clearly defined.
Governments can overcome those limits by agreeing to work collectively, through international treaties, for example. An effective and widespread governance role for governments will likely require active use of cooperative initiatives such as treaties. The nature of the Internet is such that the jurisdictional limits of all governments make them unable to play a comprehensive governance role for all Internet functions when they act independently. Through coordinated, collective actions by governments, however, more comprehensive governance functions can be undertaken. The key challenge associated with Internet governance by governmental entities is that those entities commonly lack the technical expertise required to create acceptance of their authority in the Internet community. If governments seek a leading role in Internet governance, they must develop the technical expertise necessary to perform that role effectively.
Established international organizations play important roles in Internet governance. These international organizations will provide a vehicle through which various governments can engage in cooperative governance efforts. Organizations such as the World Intellectual Property Organization (WIPO) and the International Telecommunication Union (ITU) are already active in regulatory actions with direct impact on Internet functions. For example, WIPO is playing an increasingly active role in the resolution of domain name/trademark disputes. ITU is expanding its traditional international telecommunications standards-setting functions to address the telecommunications standards aspects of Internet operations. As the operations and applications of the Internet become more fully integrated into the technical, economic, social, and political activities of the world community, the international organizations that already regulate those activities will exercise increasing influence over the Internet through their influence over the facilities that comprise the Internet and the functions supported by the Internet. International organizations provide a vehicle through which governments can transcend the limits to their jurisdiction, which would confine their Internet regulation initiatives. These organizations provide an existing mechanism through which governments can cooperate to address Internet issues that extend beyond the scope of their jurisdiction.
Over the course of its development, the Internet has inspired the creation of a variety of international groups that direct their attention toward identifying and resolving issues directly associated with the Internet as a global communications system. Groups such as the Internet Corporation for Assigned Names and Numbers (ICANN), the Internet Engineering Task Force, the Internet Society, the World Wide Web Consortium, and the Internet Assigned Numbers Authority (IANA) have played leading roles in the establishment of technical and operational standards for the Internet. The key basis for the claims to governance authority by these organizations is their technical expertise. Many have been active in the development of Internet standards and practices from the earliest days of the Internet's operations. The expertise that has developed from that history provides the greatest asset for these organizations in their efforts to establish key governance roles. The most significant limit to the ability of these groups to continue to play active governance roles is the fact that they frequently have no clear formal basis for their authority. Internet organizations must be particularly careful to develop and publicly describe the legal and political sources of their assertion of governance authority.
Internet service providers, manufacturers of Internet infrastructure equipment and technology, and Internet content providers comprise another critically important group involved in Internet governance. These commercial organizations build, operate, and maintain the facilities that create the Internet, thus they play an essential role in the development and implementation of all Internet operational requirements. No standard, practice, or policy applicable to the Internet can be effective unless it is recognized and supported by these product and service providers. These entities are thus the key to functional capability for Internet specifications, and in that capacity they must play an active role in governance functions. Every governance initiative must enlist the support of Internet product and service providers or it will not be enforceable.
Both commercial and individual Internet users form another important governance group. Any entity that would govern Internet activities must win the support of Internet users. In addition, there will continue to be a large direct role for users themselves to play in governance. We have already seen many examples of this user role. Businesses and individuals alike have recognized, for instance, the significance of information privacy and security in the online environment. Several different user groups are developing and enforcing privacy standards for Internet activities, an example of private, informal, yet also potentially effective, Internet governance. Other examples include the various ongoing efforts initiated by commercial and individual Internet users to develop commercial dispute resolution procedures and practices for Internet transactions. These efforts to create systems to develop and enforce business standards and practices for electronic commerce provide another example of a developing governance role for Internet users. There are also numerous efforts by private businesses and users to develop technical standards for various Internet technologies, applications, and services (e.g., e-commerce transactions, online music, mobile Internet access). These user-based technical standard-setting initiatives afford another illustration of the ability of Internet users to play a critical role in governance efforts.
Even individuals and organizations that are not active Internet users play a role in the Internet governance function. The general public wields its influence primarily through political arenas. Public concerns influence the conduct of governments and businesses. An increasing number of issues affecting Internet governance are gaining wider visibility among the general public. Issues such as information privacy, use of the Internet for traditional government functions (e.g., education, voting, development of legislation, constituent contact), and online taxation now attract the attention and interest of a growing segment of the general public, extending well beyond the core group of active Internet users. Some other current examples of topics now drawing increasing governance attention because of the interest spurred by the general public are privacy of personal data in the online environment and management of online advertising directed toward children. Other Internet topics will highlighted by similar general public interest in the future. That public concern is recognized by elected political officials, who in turn will take legislative and regulatory action to try to respond to the public concern. In this way, the public at large has the ability to influence Internet governance.
Without a widely held perception of legitimacy, organizations attempting to play active roles in Internet governance will not succeed. The Internet community and the general public will not abide by rules, policies, or practices for the Internet that are developed by parties they do not perceive to be legitimate. In order to create a public perception of legitimacy, governance organizations must effectively meet the following criteria.
To persuade the public of their legitimacy, Internet governance organizations must be able to describe a clear and credible legal basis for their claims of authority. That legal foundation can come from a statutory, regulatory, treaty, or contract source, but the legal source must be both clear and widely accepted. For example, ITU and WIPO attribute their involvement in Internet governance functions to international treaties that provide the legal basis for their authority in the realms of telecommunications standards and intellectual property law, respectively.
ICANN uses as its legal foundation the contractual agreements it has entered into with the U.S. government. The legal foundation for the claim of authority must be enforceable and widely acknowledged. Note, however, that legal validity alone is not sufficient to sustain legitimacy in the realm of Internet governance. The legal basis for the claim of authority must be both legally valid and publicly accepted. The public must both understand and approve the purported legal basis for the claim of governance authority.
Public acceptance of legitimacy also requires identifiable support from political institutions. Through some process, would-be governing organizations must demonstrate that they have some support for their claim of authority provided by some governmental body or instrument. Governments have both a direct role to play in Internet governance (e.g., functioning as the developers and enforcers of certain Internet standards) and an indirect role (e.g., providing an appearance of legitimacy to other governing bodies). An example of the direct governance role is the way in which the various governmental authorities regulating telecommunications throughout the world (e.g., the Federal Communications Commission in the United States) have a direct impact on the structure and operations of the infrastructure supporting the Internet. An example of the indirect role of government, as a source of political legitimacy for private governance organizations, is the relationship between the U.S. government and ICANN. ICANN was developed to create the type of governing body for the Internet that the U.S. government proposed, thus the U.S. authorities entered into contractual arrangements with ICANN, and by so doing the U.S. government created political legitimacy for ICANN. Note that political support is not the same thing as a legal basis for the governance claim. An organization that has a legal basis for its claim to governing authority does not necessarily have the political support necessary to create a public perception of legitimacy and credibility. Political support necessary to create a perception of legitimacy can be provided only from a governmental body.
All organizations that seek to play governance roles must show the public that they have the resources and the expertise necessary to develop and enforce the appropriate policies, practices, and procedures for the Internet. An organization will not be perceived as a legitimate governing body if the Internet community and the general public doubt its ability to develop and enforce appropriate standards or policies for Internet use. No entity can earn a role in Internet governance unless it is perceived to have the expertise necessary to make appropriate decisions and the resources necessary to execute those decisions. It is essential to recognize that functional capability involves both substantive expertise and operational capability. Thus for instance, while an organization such as ICANN clearly has the substantive expertise necessary to perform its role in Internet governance, the organization has not yet clearly demonstrated that it has access to the resources necessary to enable it to execute and enforce the policy decisions it makes.
We have discussed the criteria necessary to create a public perception of legitimate governance authority. To establish themselves as legitimate governing bodies, organizations must take the following actions.
Each governing body must be able to identify clearly and concisely the legal basis for its claim of authority. In addition to this legal foundation, each participant in the governance process must establish political credibility based on acceptance and support from governmental institutions. For example, ICANN can point to the endorsement it has received from the U.S. government and to the contractual agreements it has entered into with the U.S. authorities to perform its portion of Internet governance functions. Other governing bodies must establish similar legal documentation for their role in governing Internet activities. The legal and political basis for their claims of authority must be understood by the public and accepted as valid by the public.
Governance organizations should solicit substantive input and active participation from all of the key sectors of society--governments, businesses, and the public at large. This input should be obtained during the formative stages of the organizations' efforts and throughout its operations. Organizations seeking to play active roles in governance are becoming increasingly attentive to the need for this diverse input. ICANN provides an example of an organization that has done a very good job of soliciting substantive input from a wide range of sources as it has developed its role in governance. Effective management of this input requires that the organizations establish and follow clear and consistent procedures to solicit and evaluate suggestions from diverse constituencies.
An important part of effective and diverse input involves outreach to the general public. Note that this notion of outreach is not limited to the Internet-using public but should also include those people who are not Internet users. To date, it seems that governing organizations have not made as active an effort to communicate with the general public as they should. In the future, the general public's perception of the legitimacy of Internet governing bodies will play a critical role in the ability of those bodies to function effectively.
Public legitimacy requires that the public believe that the governing bodies are functionally qualified to perform governance roles. For example, the Internet community must be persuaded that the governing bodies have access to the operational expertise necessary to develop appropriate rules, practices, procedures, and policies for effective Internet management. In addition, the public must be convinced that the governing bodies have the resources and the will necessary to enforce the decisions that they make and the actions that they take. Enforcement resources include the technical skills necessary for enforcement action, the personnel required for enforcement, and the money necessary to support enforcement.
If Internet governance organizations fail to establish public legitimacy, there will be a leadership vacuum with regard to Internet operations and functions. In such an environment, the following conditions will arise, and collectively they will have a significant adverse impact on efforts to expand and enhance Internet use.
If governing bodies with clear authority do not emerge, many different organizations will each seek to create a role in governance, and each will seek to expand the substantive scope of its role as broadly as possible. Encountering no obvious resistance to their efforts, the competing groups will have continuing incentive to involve themselves in an ever-wider range of governance topics. In such a setting, competing organizations may even act to undermine governance efforts of other parties, acting deliberately to impair the ability of other governing bodies to create and enforce Internet guidelines.
The power struggle described above will result in confusion for all parties associated with the Internet and its applications. This confusion will be fueled by competing standards and procedures developed by competing governance organizations. In a leadership vacuum, all parties associated with the Internet and its applications will have difficulty identifying the standards and procedures to be applied to the various Internet activities. This environment of confusion will keep parties from making aggressive investments in Internet growth and development.
In the confused governance environment outlined above, effective enforcement of regulations, policies, and practices will be impossible. Numerous groups will be attempting to govern, but none will be in a position to enforce the actions they take. Governing bodies will be impotent, and that inability to enforce their decisions will further erode what little public credibility they may have. A policymaking body that is unable to enforce its policies has no chance of success. The inability to enforce governing authority thus dramatically contributes to the continued erosion of authority, making the power struggle more vigorous and the public confusion more widespread.
When governing bodies fail to establish their legitimacy, the fight for authority becomes chaotic and perpetual. That continuing power struggle creates near total confusion for the Internet community and the general public. In that setting, no organization is able to enforce its actions, thus the chaos continues in a "death spiral" that will threaten the future development of the Internet. What user will invest substantial time, money, or other valuable resource in a system that can provide no certainty as to structure or function?
Successful Internet governance requires the establishment of governing bodies that are perceived to be legitimate by the global Internet community and by the public at large. The governing bodies must work hard, engaging in a deliberate strategy to cultivate the perception of legitimacy, in order to earn the right to govern. Absent this perception of authority, a governing body cannot be effective.
Many different types of organizations will play a role in Internet governance: governments, international organizations, Internet organizations, Internet product/service providers, Internet users, and the general public. Coordination of the governance efforts of all of these diverse organizations will be essential.
Perceived authority arises from several basic sources. It arises from a valid and widely accepted legal basis for the claim of authority. Perceived legitimacy also arises from political support for the organization as a governing body. Finally, legitimacy requires that the governing body be perceived to have the expertise necessary to develop the requisite policies and regulations and the resources necessary to enforce those policies and regulations. The price of admission to the Internet governance club is investment in these three key criteria in order to build a public perception of legitimate authority.
The stakes in this process are very high. Failure to establish credible bodies for Internet governance will have a significant, adverse impact on the expansion of the Internet and the growth of Internet applications. Failure to establish legitimate governing bodies will result in power struggles among competing organizations, confusion for the Internet community, and an inability to enforce policies and rules necessary to manage global Internet functions. In such a setting, investment in expansion, innovative technologies, and new Internet applications will be limited. The direct result of a failure to establish clear, effective governing bodies will be impaired Internet growth and development. Those who seek a more robust Internet should work diligently to facilitate the development of effective governing bodies for the Internet.
When England found its rightful king, a period of prosperity followed. Without its legitimate leader, England descended into chaos. A similar challenge now confronts the Internet community. With effective governance, the Internet can continue its growth and economic development. Without such governance, chaos can threaten Internet prosperity. Will the Internet find its once and future king? It is in all of our interests to work to see that it does so, recognizing that the authority to govern will not be handed to the future leaders, but must instead be earned through diligent effort to establish public trust and to demonstrate legitimacy of authority.