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.
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:
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
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.
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:
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.
*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.