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Magazines > Information Today > May 2016

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Information Today
Vol. 33 No. 4 — May 2016
LEGAL ISSUES
The End of the All-American Internet?
By George H. Pike


The internet is an all-American invention—just ask Al Gore. Yes, I know that Gore did not “invent” the internet, and it is an urban legend that he claimed to have invented it. It is generally accepted, however, that the foundational structure of the internet was developed in the U.S. in the 1960s, largely through the efforts of academic and U.S. government-funded researchers and computer scientists. The ARPANET, which is recognized as the first interconnected network to rely on the “packet switching” structure for information exchange, started with a connection between the University of California–Los Angeles and Stanford Research Institute in 1969.

However, it took very little time for the internet to reach beyond our borders. Similar efforts already underway in the U.K., France, and other countries produced similar interconnected networks within their respective borders. The next step was developing the standards, structures, and protocols necessary for these disparate networks to communicate with each other, which would allow for global communication and the beginnings of the internet model that we have today. Continuing research through the 1970s and 1980s led to the development of the TCP/IP and other major internet protocols, the increasing use of electronic mail, the introduction of the Usenet bulletin board system, the use of FTP for exchanging files, and the creation of other features.

Commerce Takes Over

Many of these developments continued through the efforts of academ ic (often government-funded) and government (often military or defense-oriented) researchers. By the late 1980s and early 1990s, however, commercial business started to take on much of the continued expansion and operation of the internet. With the development of browser technology, by the early 1990s, the internet had become established as the glob al commerce and communication system that has revolutionized the world in a way not seen since the introduction of the printing press.

The challenge is that someone still needs to run this thing, but in a global environment, identifying who or what that will be can be challenging. A government agency? If so, which government? A private company? Do we really want to trust a single company to run something this large and critical? The user community? How would we balance the needs of different stakeholders?

ICANN

In most respects, all of these entities have played a role in ongoing internet governance, and—similar to the internet itself—a global network of boards, organizations, and task forces has developed that interacts to maintain and further develop the internet’s structure and operation. ICANN is the most widely known of these internet governance organizations. According to Wikipedia, ICANN administers “several key technical and policy aspects of the underlying core structure” of the internet, in particular, its numerology and naming, including the assignment of IP addresses, domain names, and other key parameters of internet operation.

While ICANN is an independent, nonprofit corporation with an international board of directors, it is based in the U.S. and is subject to oversight by the U.S. Department of Commerce, particularly in the assignment and management of IP addresses, domain names, and protocol parameters through the Internet Assigned Numbers Authority (IANA), a department of ICANN.

Department of Commerce Oversight

The oversight of ICANN by the Department of Commerce has not been without controversy. Some commentators have argued that government supervision of such a critical component of the internet is not in the spirit of principles of freedom for the internet to develop as technology and user needs dictate. Others have argued that, as has been repeatedly seen, the internet is a high-risk “place” that needs some level of structural oversight to manage that risk.

As ICANN and other aspects of internet governance have grown more robust and organized, there has been a push to remove the Department of Commerce from its oversight role, provided there are assurances that internet governance will remain organized and structured in a way that manages risk to a reasonable degree. Over the last several years, the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability), which comprises members of the global internet community, has been working to develop “a set of proposed enhancements to ICANN’s accountability.” If enacted, it will give ICANN new governance authority, while strengthening oversight of ICANN by the broader internet community.

12 Recommendations

In late February, CCWG-Accountability outlined 12 recommendations to accomplish these goals (community.icann.org/pages/viewpage.action?pageId=58723827). They include the creation of a separate organization that would represent all of the various stakeholders and would have the authority to exercise and enforce the goals of the community, including the power to remove ICANN board members and amend ICANN’s bylaws. The organization would have the collective authority to develop and implement strategic planning, oversee budgeting, and initiate independent review processes. CCWG-Accountability also recommended changes to ICANN’s mission, additional recognition of human rights by and through internet governance, and a commitment to further accountability.

The plan has been approved by ICANN’s constituent organizations and was presented to the Department of Commerce for review. In 2014, the Department of Commerce entered into an agreement with ICANN to end its oversight if ICANN was able to come up with a plan that would meet the department’s standards of multiparty oversight, accountability, and appropriate risk management.

Congress Holds Hearing

Congress has also expressed interest in ending U.S. government oversight of ICANN while still ensuring appropriate accountability and risk management. Following the publication of CCWG-Accountability’s plan, the U.S. House of Representatives’ Subcommittee on Communications and Technology held a hearing on it. In general, most of the witnesses favored the privatization of internet governance and CCWG-Accountability’s plan. The Internet Governance Coalition described the recommendations as “good for America, good for American business, good for the internet, and good for the world.” Another internet community group, NetChoice, said that ICANN needed to be “accountable to the entire community” and that while the proposal may have some “implementation challenges in the months ahead,” the end results would be better accountability, “something that has never before existed.” Some witnesses did express concern about further work to be done, including the drafting of new bylaws, and offered recommendations for continued oversight by the Department of Commerce through the implementation process.

While the internet may have been born in the USA (yes, I’m a Bruce Springsteen fan), it was raised and has matured in a global community of stakeholders with multiple, and occasionally conflicting, agendas. In order to manage those conflicts in a way that respects the stakeholders while maintaining an open internet environment and robust development, a strong voice is often required. In the past, that has included the U.S. government. As the government steps away, an equally strong voice will be needed to fill that void.

George H. Pike is the director of the Pritzker Legal Research Center at Northwestern University School of Law.
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