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Public Policy Issues in Internet Governance

by Christopher Wilkinson
Christopher.Wilkinson@cec.eu.int

The extension of the Internet into virtually every branch of social and economic activity has led to growing public policy interest and sometimes concern as to how the Internet is managed and whether there is adequate accountability-not least in terms of respect of applicable laws. This development contrasts with the technological and academic origins of the Internet and with the tradition of self-regulation and noninterference on the part of governments.

The European Union has been part of this process during recent years. Christopher Wilkinson is at the forefront of trying to find the necessary balance-in Europe and globally-between the potentially contradictory requirements for the liberal self-regulatory regime of Internet governance, including the necessary flexibility and speed of response on one hand and the growing pressures for greater accountability, transparency, and conformity, at least with the principles of relevant local and international laws, on the other hand.
In March 1998, the European Union (EU) responded to the publication of a draft proposal by the U.S. Department of Commerce for the technical management of the Internet domain system. In that document, the EU called for the future of the Internet to be agreed upon in an international framework, and it pointed to several policy areas of concern to European public authorities. Those policy areas included the need to implement an international approach to issues of jurisdiction, trademarks, competition policy, dispute resolution, and the scalability and portability of the Domain Name System (DNS). That public statement was one of the first regarding public policy interest in the organization and management of the Internet.

Following the response and other consultations with the White House and the Department of Commerce, the U.S. white paper published in July 1998 referred specifically to the global dimension of Internet management, and in due course, the Articles of Incorporation of the Internet Corporation for Assigned Names and Numbers (ICANN) addressed directly the applicability of local and international law. The principle of geographic diversity was endorsed and implemented in due course in the composition of the ICANN board and supporting organizations.

The ICANN Governmental Advisory Committee (GAC), meeting for the first time in Singapore in early 1999, also adopted a preamble to its Operating Principles that reflected the consensus of the governments present as to the scope of the public policy issues that should be within the remit of the GAC. One of those issues was the general principle that "The Internet naming and addressing system is a public resource that must be managed in the interests of the global Internet community."

Since that time, the European Union has continued to maintain the importance of those principles. How do those matters stand today, three years later, regarding the scope of public policy and, secondly, regarding the nature of the responsible bodies?

The Scope of Public Policy

In a general sense, public policy is policy that is in the interests of the public at large and that is decided by bodies with public authority. However, the scope of such policies is not self-evident in the context of the Internet, wherein a high degree of private self-regulation has become the norm. Neither is it clear which bodies exercise the necessary public authority, particularly because the Internet itself has charged its own private entities-such as the Internet Engineering Task Force (IETF) and the ccTLD (country code Top Level Domain) Registries-with varying degrees of responsibility for the public interests and, consequently, for certain public policy interests as well. Indeed, ICANN itself is a private entity under U.S. (California) law, but certainly exercises part of its responsibilities explicitly on behalf of other governments, worldwide-by delegation from the U.S. government-and implicitly through the international composition of its board and through the GAC.

For the present purposes, we shall limit the discussion to issues that fall actually or potentially within the remit of the ICANN organization and its constituent bodies, including the GAC. This is clearly an arbitrary limitation from the point of view of public policy in general because it excludes-or should exclude-all content-related issues, such as cybercrime, copyright infringement, and commercial and fiscal fraud. The limitation is self-imposed in the interests of time and space, although burgeoning interest in the potential use of the Whois query services tends to belie that distinction.

Would the scope and emphasis of public policy in the context of Internet management be any different today? First, the initial cut in terms of the appropriate definition of the scope of public policy in this area has proved to be not too wide of the mark:

  • The importance of balanced international representation has been fully recognized and taken over as an article of faith by nearly all of the Internet and ICANN communities. The first steps in this direction on the part of the Europeans were quickly emulated by Asia and Latin America, and Africa, the Middle East, and Eastern Europe will no doubt follow closely in the foreseeable future.
  • Respect for local and international law has in practice been interpreted as including competition laws, intellectual property laws, and data protection and privacy laws. How this is implemented is to date not entirely satisfactory, notably because ICANN is confronted with significant differences between jurisdictions in certain areas of law and has not yet struck the right balance between its accountability to U.S. jurisdiction by virtue of its location and incorporation (and its contractual relationships with the U.S. government) and to international jurisdictions by virtue of the location of most of its international contractual partners, notably registries and registrars and the economic and social effects of its activities.
  • Characterizing the Internet naming and addressing system as a public resource by the GAC has also been an important foundation for guiding the organization of ccTLD Registries and their relationships with national governments and other public authorities.

Among these policy issues, one could highlight the matter of competition policy and particularly the extent of ICANN's responsibilities as illustrated by the recent negotiations of the .com, .net, and .org agreements with VeriSign.
Privacy and data protection is another example, wherein the desire to see a globally consistent Whois query service operating across all TLD registries and registrars is not readily consistent with the diversity of national data protection laws, at least in the European Union.

Other significant policy issues have emerged meanwhile that were not foreseen in 1998-99. For instance, the GAC has addressed the issue of geographic names and policy for ccTLD registries. Another case in point: the European Union institutions are working on a regulation to permit implementation of the .EU TLD registry. Naturally that text addresses the question of relevant public policy regarding such a ccTLD registry. The Commission's proposal pointed specifically to alternative dispute resolution and to preventing speculative and abusive registrations as areas of public policy. However, the European Parliament and the Council of Ministers have broadened the scope that now includes policy on revocation of domain names, issues of language and geographic concepts, and the treatment of intellectual property and other rights.

The extent to which ICANN would itself effectively create regulations governing the DNS through its contracts with registries and registrars was also not fully recognized at the time. Granted that ICANN obviously does have regulatory responsibilities, the question as to how those responsibilities are being exercised currently through the so-called bottom-up process is attracting the increasing attention of both private-sector players, whose businesses are affected by these regulations, individuals and non-governmental organizations, and by governments, which see this as a process that they would otherwise have to be carrying out themselves.

The Relevant Public Authorities

The second broad issue relates to which are the relevant bodies with the necessary public authority to exercise these responsibilities and how. It is already clear that in the global Internet it is insufficient to think only in terms of national governments and international organizations as normally understood. Already GAC principles engage in linguistic contortions to include several entities in GAC membership that are not, strictly speaking, national governments. The GAC has also recognized that the ITU and the WIPO have particular roles to play (as indeed did the initial IAHC set up by the Internet Society in 1997). The European Union itself, a full member of GAC, is constitutionally unique because it is neither an international organization nor a national government, but manifests characteristics of both.
Although the GAC has a clear view of the importance of all of these public policy issues, its responsibilities are advisory, and that has led some governments to question whether the GAC can fill the bill or whether it is worth its time and effort to participate actively. From the EU's point of view, we would argue that it depends crucially on how effective GAC is in preparing and presenting its advice in a timely manner and on how ICANN responds to the advice it receives. If public authorities fail to participate in the ICANN process through the GAC, they will effectively ensure that the advice is considered weak and is ignored. If ICANN fails to take adequate measures in the public interest, then it is clear that the governments will step in; in that event, it is essential that the EU be "at the table," should the need arise. This political fact has indeed been recognized explicitly by ICANN.

Indeed, many would argue that in practice, ICANN itself is now one of the bodies exercising public policy responsibilities. ICANN is recognized as a unique experiment and consequently is difficult to classify or characterize, but it clearly:

  • Functions as a sole regulatory coordinating organization for the Internet infrastructure. Since it functions as a global monopoly in its area of responsibility, it is important that it operate in the public interest and not abuse its position in any way. Whence the requirement for transparency, consensus, and potential review of decision-making processes.
  • Creates rules for the market for domain names and for the allocation of Internet protocol addresses that are increasingly implemented via contracts between ICANN and the registries and registrars. This contractual framework does not look like a system of regulatory law, but it has very similar effects because it affects a whole range of economic and legal issues, including prices, terms of conditions of registration, and dispute resolution.
  • Has a direct effect on the conditions of competition between registries and registrars, including determining whether the same company can operate as both a registry and a registrar.
  • Determines the basis on which registration data is made available to the public, including, eventually, personal data.
  • Determines, through IETF and IAB, the organizational framework in which the Internet technical standardization process takes place.
  • Strongly influences-through the ASO and the RIRs-the global policy for allocating Internet protocol address blocks-increasingly perceived as the essential basis for the whole of modern communications.

Consequently, even if ICANN strictly stuck to its last, narrowly defined, there is more than enough in /'the scope of its policy-making functions to garner the attention and occasionally the concern of governments worldwide. Furthermore, a corporate approach that is oriented principally toward the interests of major Internet operators-as increasingly represented by the supporting organizations-probably offers insufficient internal checks and balances to ensure the public interest worldwide. That is why ICANN has to give a very high priority to ensuring the adequate representation of public interests either within its own structures-notably through public interest directors, elected by the at-large membership and appropriately constituted-or through a very thorough and interactive relationship with governments.

Whereas most governments appear to be supportive of the principle of the individual membership of ICANN and at-large elected directors, this has not yet been discussed thoroughly in the GAC and most of them would also argue that for the foreseeable future, it is the public authorities themselves and not the at-large membership that constitute the relevant manifestation of the public interest.

At a time when the U.S. administration is appropriately relaxing its contractual controls over ICANN and progressively transferring authorities to ICANN-a process that is widely supported internationally-it is becoming increasingly important that the international or global dimension of ICANN's own decision-making processes be effectively strengthened, including in ways that can create and sustain the confidence of public authorities, worldwide, who see the Internet-and particularly the names, addresses, and protocols-as the most important element of the communications infrastructure and thus increasingly of the economy and society as a whole.
Since there is no room for serious error, and here I echo Stuart Lynn's own words, ICANN cannot be surprised that governments ultimately see little distinction between an advisory relationship through the GAC and more active oversight, thereby permitting those governments to fulfil their own responsibilities to their societies, their legislatures, and their electorates.

Footnotes
1. http://europa.eu.int/ISPO/eif/InternetPoliciesSite/InternetGovernance/
MainDocuments/ReplytoUSGreenPaper.html

2. http://www.noie.gov.au/projects/international/DNS/gac/
GAC_Operating_Principles.htm

3. Members of the GAC shall be national governments, multinational governmental organizations and treaty organizations, and public authorities...Membership is open to all national governments. Membership is also open to distinct economies as recognized in international for a, and multinational governmental organizations and treaty organizations. GAC Principles No. 14 and 15.
4. In a recent report about the consequences and risks of alternative root systems, the ICANN CEO stated: The Internet as we know it is a public good, created in large part by government funding and volunteer effort. ICANN has been handed a public trust to manage that resource for the public interest. This public trust is inconsistent with acquiescence in this form of commercial pressure. To accept this philosophy would likely mean the abandonment of the Internet's community-based process by most of those who are participating in it today. And that would almost certainly result in renewed efforts to substitute some form of intergovernment organization for ICANN, since it seems highly unlikely that the world's governments-or most of the world's users-will be comfortable with absolutely no management or oversight of this critical global resource.
5. http://www.icann.org/icp/icp-3-background/response-to-new.net-09jul01.htm
Christopher Wilkinson is a vice president of the ICANN Governmental Advisory Committee, on which he represents the European Commission. He is an adviser in the Directorate General Information Society, European Commission. He was nominated by the Internet Society to the Policy Oversight Committee for the gTLD-MOU.

*Note: The views expressed in this article are those of the author and do not necessarily reflect the official European Commission view on the subject.

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