The future of Internet governance

Proceedings of the Annual Meeting-American Society of International Law, Annual, 2007

MS. DYSON:

The best way to describe cynicism is as the disappointment of the idealist. A government has the challenge of having to govern everyone and be accountable to everyone. A private-sector organization can choose whom it wants to deal with. It can say: "You are too much of a trouble-maker; we don't want you in our store, in our organization, whatever." ICANN had an even more difficult problem because it was not really clear who was in its store. It kept foundering on the notion of representative democracy and voting. Of course, people who wanted to be influential could round up the digital troops. They mayor may not have existed as physical bodies, and so there were some votes, but they were pretty messy.

PROFESSOR WU:

The elections?

MS. DYSON:

Yes, the elections.

PROFESSOR WU:

For people who do not follow this, ICANN made an effort in its earlier days to have global elections. To have elections for the whole world, independent from any sort of government, so it was an experiment in global democracy.

MS. DYSON:

Yes, it got about 100,000 votes as I recall. It was riddled with problems, and conspiracy theories abounded. These are great examples of governance on the Internet, but they are not governance by the Internet. That is, you can be arbitrary if you are not a sovereign government. You can have rules in a particular online community, and you can have rules for changing those rules that are not voted upon. If you do not like the rules, you can go somewhere else. There are great models for governance on the Internet, but they do not really apply to governance of the Internet. They could apply to ICANN, and you can argue they should apply to ICANN if there were credible alternatives. But precisely because there is no credible alternative to ICANN, ICANN has a duty to be more accountable and more procedure-ridden than might be appropriate. But I think it goes way too far in that direction. The best thing that could happen for ICANN would be some lightening up of its rules; that might improve things.

The other challenge is dealing with some of the mess on the commercial side of ICANN. I am not talking about people living off ICANN, but the whole domain name business, the association of easy-to-get domain names with criminals who run phishing websites and stuff like that have turned this thing into a cesspool.

PROFESSOR FROOMKIN:

I would give a somewhat different answer because I think that there was more than one dream that was combined. One was the dream of a sort of spontaneous, self governance. And we do see that for things that are purely on the Internet like the Internet Engineering Task Force (IETF). I wrote a paper arguing that it was as close to having an ideal discourse as you were ever going to see in real life. These were hothouse conditions where you had people with similar interests--they had an economic interest in there being an answer, and it is not something that is easy to replicate outside. I would say that we also have some of the dream alive for the use of IT to help national politics. I refer to "You Tube" and blogs and the whole discourse that is happening here and in other countries, which is a very exciting development. That was never ICANN. ICANN very quickly became an economic fight over board votes. However, there was a different dream that has not yet been mentioned, which was the public/private cooperative dream that I sometimes call vulgar corporatism. It was a dream dreamt by people who were not really familiar with that history of attempts of corporatism and did not try to design around the problem and therefore fell into the known traps. I am very happy to say that if anything good came out of ICANN, we killed that.