Cambridge Review of International Affairs, Volume 19, Number 1, March 2006

Internet Governance in a Multipolar World: Challenging American Hegemony

David Drissel Iowa Central Community College
Abstract This article traces the evolution of Internet governance, beginning with the earliest trans-Atlantic Internet community associations that formed in the 1970s, up to and including the present mosaic of semi-private self-regulating agencies headquartered mostly in the US. The effectiveness of the current system of Internet governance, based in large measure on US-sponsored bodies such as the Internet Corporation of Assigned Names and Numbers (ICANN), is assessed and contrasted with an emerging international paradigm that seeks greater cross-border harmonisation and multilateral oversight of cyberspace resources. Political disputes arising amongst governments and other interested stakeholders concerning allegations of American regulatory unilateralism are examined. Fuelled in part by a digital divide between the technological haves and have-nots, the battle for the heart and soul of the Internet has reached fever pitch, without any denitive prospects for achieving a global consensus. Special emphasis is placed on emerging US EU policy differences, as well as divergent North South positions within the UNsponsored Working Group on Internet Governance and related conferences. Strategies for enhanced international coordination of Internet governance, building on existing organisational structures and processes, are proposed.

In the years since the genesis of the Internet in the late 1960s, pioneers of digital technology have described cyberspace as a unique electronic frontier, one that steadfastly resists all attempts at governmental control or state-imposed regulation.1 Indeed, the Internet has been promoted as a parallel universe, in which websites, email, chat rooms, and other forms of computer-mediated communication (CMC) effectively link individuals who have similar interests and concerns, regardless of their national origin or locale (Bell 2001, 7). Based on this cosmopolitan logic, entering cyberspace essentially transforms national citizens into global netizens,2 imbued with unique characteristics and prerogatives unrestrained by physical space or time. The political demarcations and hierarchical machinations of the ofine world, together with its compulsory regulatory regimes, are therefore deemed anathema to the uid self-regulating realm of cyberspace.

For more on the Internet ethos, see Uimonen (2003, 273 7) and Rheingold (2002, 47 9). This term was coined by Internet theorist Michael Hauben in his 1992 article, The Net and netizens: the impact the Net Has on Peoples Lives.
2

ISSN 0955-7571 print/ISSN 1474-449X online/06/01010516 q 2006 Centre of International Studies DOI: 10.1080/09557570500501812

106 David Drissel In spite of such views, the Internet increasingly has become the focal point of state-sponsored extraterritorial regulations and multi-jurisdictional court decisions involving electronic commerce and other online transactions (Kobayhashi and Ribstein 2003; OReardon 2004; August 2002). Such developments have frequently pitted nation against nation, with seeming American hegemony over various facets of the Internet often challenged as a result. Fuelled by globalisation and widely perceived disparities in technological and informational resources, such trends have become progressively pronounced. Consequently, the concept of Internet governance has emerged as the latest buzzword, broadly dened to include not only the regulatory power of states over online transactions, but also the mosaic of numerous non-governmental and intergovernmental actors involved in coordinating the norms, policies, protocols, decision-making procedures, and technical infrastructure of cyberspace.3 In explaining the need for Internet governance, many observers contend that online transactions often have negative repercussions in the real world, thereby necessitating a more formalised approach to regulating cyberspace (Goldsmith 2003; Zittrain 2003). The growing incidence of online fraud and identity theft, privacy incursions, copyright infringements, trademark violations, domain name disputes, spamming, computer viruses, inadequate or vaguely dened consumer protection laws, and terrorist-related and pornographic websites has fuelled such concerns. Though nation-based regulations and private sector approaches have addressed some of these problems, a growing number of technical experts, theoreticians, government ofcials, and activists contend that a borderless Internet necessitates a more direct system of intergovernmental coordination and regulation (Feld 2003; Samuelson 2000). In contrast, other interested parties maintain that the self-regulation of cyberspace norms and technical standards through informal non-governmental private ordering is sufcient and vastly preferable to more centralised and potentially problematic public sector approaches (Burk 2003; Post 2003; Price and Verhulst 2000; Shipchandler 2000). Signicantly, various models of prospective Internet governance regimes are now being proposed in multinational forums, with a wide assortment of governmental and non-governmental stakeholders playing a pivotal role in this emerging debate. This article investigates several major issues surrounding Internet governance in an increasingly multipolar world, focusing primarily on the often contradictory proposals put forward by representatives of the US, the EU, the UN, and developing countries such as China, India, and Brazil. Major differences have emerged over appropriate public, private, and hybridised remedies to problems plaguing the Internet. The article assesses the efcacy of the current system of Internet governance, based in large measure on a montage of reputedly non-governmental bodies headquartered in the US, contrasting it with an emerging international paradigm that seeks greater cross-border harmonisation and multilateral oversight of cyberspace resources. It examines political disputes arising amongst governments and other interested stakeholders concerning allegations of American regulatory unilateralism, with particular emphasis placed on the growing controversy surrounding the pre-eminent US-government-chartered self-regulating body, the Internet
3

For a similar denition, see de Bossey (2005, 4).

Internet Governance in a Multipolar World 107 Corporation of Assigned Names and Numbers (ICANN). Finally, it proposes strategies for enhanced international coordination of Internet governance, building on existing organisational structures and processes. Trans-Atlantic Origins of Internet Governance The Internet is often described as a mostly US government creation (Marsden 2000, 4), though in reality this is an oversimplication. Much of the earliest research on the Internet dates back to American universities and think tanks, with European scientists and institutes also directly involved. Massachusetts Institute of Technology (MIT) researchers are frequently credited with conceptualising the initial plans for an interconnected global computer network in 1962, though scientists at the British National Laboratory (BNL) had developed a similar theory at about the same time. The US Department of Defense (DOD) became involved in the project soon after a groundbreaking Rand Corporation paper was published in 1964. The papers premise of a computer network of nodes equal in status and lacking any identiable central authority was particularly attractive to military planners of the cold-war era. Concerned about the survivability of command and control systems during wartime, the DOD quickly embraced the concept (Bell 2001, 12). With the DOD underwriting the project through the Advanced Research Projects Agency (ARPA), research was conducted jointly at Rand, MIT, University of California Los Angeles, and the British National Physical Laboratory (NPL), eventually leading to the rst successful trans-Atlantic test of the system in 1969.4 The rst Internet-related non-governmental association was probably the Internet Working Group, which formed in the early 1970s from a core of mostly former ARPA staffers and collaborators. By the end of the decade, new quasimanagerial organisations had emerged from within the information technology sector, due primarily to insider concerns about coordinating the activities and functions of the budding Internet. Collaborative organisations containing researchers from a variety of geographic locales quickly became the norm, with only limited government involvement. Such pioneering groups had emerged on both sides of the Atlantic, including the Internet Cooperation Board, the Internet Conguration Control Board, and the European Internet Research Group. For the most part, these groups articulated non-binding proposals and suggestions for improving the Internet while facilitating its growth. The management of Internet technical standards became somewhat more formalised by the mid-1980s, with the creation of new civilian self-regulatory bodies that assumed particular operations. Most noteworthy in this regard was the Internet Activities Board (IAB),5 which was chartered as a coordinating organisation for Internet research and development at the University of California. Tied to the IAB was the Internet Engineering Task Force (IETF), created in 1986 for the express purpose of establishing and coordinating voluntary Internet technical standards such as Transmission Control Protocol/Internet
For additional information on the origins of the Internet and related governance projects, see Kizza (1998). 5 Later renamed the Internet Architecture Board.
4

108 David Drissel Protocol (TCP/IP) addresses and email protocol. Headquartered in Virginia, the IETF adopted a standards-setting process based almost exclusively on interactive online discussions. The groups organisational credo emphasised operational experience in the marketplace for proposed new standards, prior to granting formal recognition. Lacking an ofcial membership roster or structure and basing decisions on an imprecisely dened rough consensus, the IETF mirrored the countercultural ethos of the Internets founders (Gould 2000, 205 7). The International Telecommunications Union (ITU), a successor body to the International Telegraph Union established in 1934, emerged in the 1980s as a European-based rival to IETF and a counterweight to perceived American dominance of the Internet. The ITU, afliated with the UN, introduced the X400 Message-Handling System (MHS) for email, which directly competed with the IETF-sponsored Simple Mail Transfer Protocol (SMTP). The organisational styles of the two groups differed substantially, with the ITU assuming a more hierarchical organisational structure. In contrast to the uid membership policy of the IETF, the ITU restricted its roster to governmental representatives, UN agencies, and a small number of other designated parties. The ITU likewise spurned the IETFs operational criteria, preferring instead to codify new technical products or services prior to their market dissemination. Problems with this approach became apparent soon after the abrupt market failure of the ITUsanctioned MHS email system, which lost out in popularity to SMTP. By 1984, the National Science Foundation (NSF), a quasi-independent agency of the US government, had assumed primary responsibility for maintaining the Internets main database and subsequently began sponsoring the addition of new network nodes at numerous universities and institutes in the US and Western Europe. The NSF, in cooperation with the Defense Information Systems Agency, assigned responsibility for managing the Internet root zone le (that is, the original master list of registered numbered sites known as the Internet Protocol System) to the Information Services Institute (IST) at the University of California in 1985. The IST, renamed the Internet Assigned Numbers Authority (IANA) in 1988, contracted with the NSF for the responsibility of assigning and administering alphanumeric IP addresses. The NSF also augmented the Internet Protocol System by commissioning the Domain Name System (DNS), that is, a database of Internet site names in the root zone le divided into particular domains or categories of sites. In contrast to the more complicated multi-numbered IP strings, each Internet node or site would now have a DNS designation as well, based on a unique combination of standard keyboard letters. Each domain name would act as a public surrogate for the actual IP address. The DNS system was arranged hierarchically with top-level domains, second-level domains, third-level domains, and so on. Holders of toplevel domains (TLDs) such as.com,.org, and.net, were authorised to register second-level domain sites under their particular TLD. The NSF also divided TLDs into two major categories: generic top-level domains (gTLDs) and country code top-level domains (ccTLDs). Internet service providers (ISPs) soon emerged as the primary technical intermediaries for granting web access, allowing the user to post, nd, and exchange information online. Internet service providers began to perform quasigovernance and regulatory functions, providing some degree of order and structure to an otherwise anarchistic realm. They not only linked personal

Internet Governance in a Multipolar World 109 computers to the Net, but also provided search engines, email, and other tools that localised content. To insure that Internet website technologies remained standardised and integrated, British researcher Tim Bernes-Lee spearheaded the establishment in 1994 of the non-prot World Wide Web Consortium (W3C). Bernes-Lee who had previously designed the original Web at the CERN physics laboratory in Geneva was particularly concerned about maintaining interoperability, that is, common operational protocols. Sponsored by 350 public and private organisations in Europe and North America, W3Cs mission was essentially to regulate the Webs standards-based infrastructure, albeit in a voluntary fashion. Other, more distinctly, American-based self-regulating institutions emerged during the same period, such as the Internet Society (ISOC) and the Internet Architecture Board (IAB). The ISOC, in particular, assumed an increasingly important role in coordinating institutional research on DNS policy. But the tacit Americanisation of Internet technical governance was tied most directly to the National Science Foundations decision in 1993 to delegate the naming function of the DNS to Network Solutions (NSI), a private US-based corporation. After issuing a formal request for proposals, the NSF awarded control of the authoritative copy of the Internet root zone le (A Root) to NSI, which received a ve-year contract and also agreed to administer the most important generic toplevel domains. At rst glance, this move appeared to limit US government involvement in Internet governance while expanding self-regulation by private parties. But by contracting explicitly with an American corporation, NSF seemed to ignore the interests and concerns of their European partners. Factional feuds within the trans-Atlantic Internet community became increasingly pronounced as a result. In contrast to non-prot self-regulatory bodies such as IANA and ISOC, NSI was unabashedly prot driven. Such differences exacerbated internecine conict and prompted IANA to lobby governments and other parties to become involved. The IANA was particularly concerned about NSIs exclusive control of gTLD registrations. The IANAs opposition to NSI was fuelled in large measure by perceptions that the company was exploiting the DNS for corporate dividends, rather than genuine scientic concern. As Feld (2003, 342) observes, [t]his hostility would translate itself into various policy initiatives designed to break or regulate the perceived monopoly of NSI. Emerging Sources of Global Dissension In recent years, Internet governance has become increasingly bifurcated between American and European legal doctrines and approaches. With countries on both sides of the Atlantic engaging in cross-border Internet regulation, signicant national and regional differences have emerged as a result. In addition, a growing number of developing nations have registered complaints over North South disparities in the distribution of Internet resources (for example, insufcient allocation of domain names for developing nations with relatively large populations), coupled with only marginal input and involvement in Internet governance. Reacting to such concerns, several intergovernmental organisations have sought to bridge the global gap. Particularly noteworthy in this regard are

110 David Drissel the World Intellectual Property Organisation (WIPO), the UN, the International Telecommunications Union, the Organisation for Economic Cooperation and Development (OECD), the World Trade Organisation (WTO), and The Hague Conference on International Private Law. Though all such bodies have sought either to harmonise or to minimise disparate Internet regulations, several have actually contributed to even greater global dissension. Probably the best example of a highly polarising body is the Internet Corporation of Assigned Names and Numbers (ICANN), responsible for managing the Nets global domain name system (DNS). Ostensibly nongovernmental though licensed directly by the US Department of Commerce, ICANN is often accused of favouring American corporate and political interests over European and especially Third World concerns. As the body in charge of authorising the creation of new top-level domains and issuing licenses to registrars, ICANN is a lightning rod for global controversy. It is fair to say that intense factional disputes have plagued this body since its inception in 1998, with calls for its comprehensive reorganisation or abolition increasingly commonplace. Much of the uproar over ICANN has emanated from the organisations origins, which involved a series of inter-organisational committees, rivalries, negotiations, and proposals. The initial impetus for ICANNs creation was growing concern throughout the Internet community over Network Solutions perceived monopolistic exploitation of the domain-naming function. Network Solutions, a US corporation that had contracted for control of the DNS in 1993, had fuelled controversy by imposing the rst-ever annual fee (US$50) for all registrations worldwide among the.gov,.edu,.com,.net, and.org domains.6 Igniting additional concern was the unveiling of a new domain dispute resolution policy in 1995 that appeared to favour corporate trademark holders over other, less powerful, domain owners. Exercising US government-approved extra-territorial regulatory powers to suspend any domain name worldwide, NSI increasingly alienated a growing number of Internet scientists, scholars, entrepreneurs, and other stakeholders. As a result, the International Ad Hoc Committee (IAHC) was established in 1996 for the express purpose of proposing changes to the domain name system. The IAHC, which included representatives from several different nongovernmental and intergovernmental bodies, recommended adding twenty to thirty new gTLDs per year. Noting that the Internet is a public resource, IAHC proposed the addition of 28 new registrars spread equitably throughout the world (Gould 2000, 199 200). The revised DNS system would be overseen by a new supranational non-prot association, headquartered in Geneva. Uniform rules would govern all registrars, though they would be allowed to compete with each other by assessing variable fees and timetables for domain name registrations. The plan called for a new standardised domain name dispute resolution system managed by WIPO which would focus specically on trademarks and domain name piracy (Helfer and Dinwoodie 2001). The IAHCs nal report, known as the Memorandum of Understanding (gTLD-MoU), was received with decidedly mixed reviews. Though IANA and ISOC had endorsed the plan, critics contended that it lacked sufcient
6

Prior to this time, the NSF had funded the cost of all such registrations.

Internet Governance in a Multipolar World 111 government input, challenged national sovereignty, and ignored international law (Froomkin 2000, 219 20). The kiss of death for the plan occurred in mid-1997 when the US government refused to sign the Memorandum. At this point, the Clinton administration directed the Department of Commerce to support efforts to make the governance of the domain name system private. The Department was told to create a contractually based self-regulatory regime with the specic policy objective of addressing potential conicts between domain name usage and trademark laws on a global basis (quoted in Feld 2003, 333). The administration apparently wanted a system that was ofcially private and imbued with powers of extraterritorial jurisdiction, yet beholden to the US government. It seems that the directive was issued in part to head off calls from the EU and elsewhere for genuine internationalisation of the Internets governance system. The Green Paper, issued by the Commerce Departments National Telecommunications and Information Administration (NTIA) in early 1998, recommended the creation of a new US-based, non-prot corporation that would assume most functions of IANA as well as provide general oversight of the domain name system. In contrast to the complex global system envisioned by the IAHC, the Green Paper recommended a privatised system of minimal global regulation. The new plan implicitly asserted American hegemony over the Internet, much to the chagrin of the EU and other countries. The EU was particularly concerned about the lack of multilateral consultation in resolving the DNS regulatory issue. Europeans were less inclined than Americans to support privatisation or deregulation, though they too were dissatised with the status quo. The EU expressed concern over the Green Papers proposed establishment of a US-licensed private monopoly, which directly contradicted IAHCs previous description of the Internet as a global public resource (Gould 2000, 201 2). In an attempt to appease the EU and other critics, NTIA issued a White Paper with slightly modied policy recommendations that reiterated the need for a private self-regulating corporation, but also contained assurances that the new body would be democratic, transparent, and geographically diverse. In an effort to garner greater international legitimacy, NTIA asked WIPO to develop a policy recommendation for the prospective corporations trademark/domain dispute resolution system. In November 1998, the US Department of Commerce formally incorporated and licensed ICANN.7 Divergent US and EU Approaches One of the most vexing issues currently confronting Internet governance is the growing problem of online invasions of privacy by corporate interests. This issue, more than almost any other, effectively separates the US regulatory approach from that of the EU (Cate 2003). Substantial trans-Atlantic policy differences on this issue are evident in the regulation of clickstream data, that is, electronic records involving online interactions, collected in the form of log les. These les record the type and name of websites visited along with corresponding ISP addresses.
The details of ICANNs incorporation and authorisation are contained in a Memorandum of Understanding; see National Telecommunications and Information Administration (1998).
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112 David Drissel Every keystroke and online interaction included in the clickstream is potentially subject to involuntary surveillance and collection by corporations and governments. Proles of online consumers are routinely assembled for marketing products and other commercial purposes, particularly by US-based rms. Due to the Internets geographic indeterminacy, such data are easily collected by companies in one jurisdiction and shared with those in another. This type of multinational sourcing of personal information leads to conicting national positions over appropriate regulatory controls (Regoli 2002). The US and EU exhibit marked differences in their regulatory approaches to the issue of consumer privacy in general, whether of the ofine or online variety. The US thus far has opted for a piecemeal approach to regulating privacy protections, with only sporadic and very narrowly dened legislation (for example, Fair Credit Reporting Act, Video Privacy Protection Act, and Anti-Spam Act). The only noteworthy Internet condentiality legislation adopted by the US is the Electronic Communications Privacy Act, which somewhat restricts the interception and disclosure of cyberspace data by non-governmental actors, but exempts information that is readily available within the public domain. Rather than develop comprehensive legislation protecting online privacy, the US government has generally embraced a market approach emphasising informal self-regulation (for example, industry codes of conduct, contracts, privacy intermediaries) and only limited legal protections for online consumers. Though the Federal Trade Commission proposed new privacy standards to Congress in 2000, the subsequent election of the decidedly pro-business President George W Bush quickly quelled prospects for the passage of such legislation. In contrast, the EU has embraced a comprehensive rights-based approach that emphasises the harmonisation of privacy rules among member states. Signicantly, the EU has chosen to frame the issue in terms of citizen rights and social protections rather than the preferred US paradigm of limited government interference in private transactions involving consumers. To this end, the EU adopted a Directive on Data Protection in 1995, requiring that all member states codify a uniform set of substantive standards. The standards were enumerated in the so-called First Principles which, among other things, require the knowledge and active consent of individuals prior to the collection or disclosure of personal information. Though the US has endorsed the First Principles in theory, there are no similar uniform codications in US law. Moreover, the EU requires specic agency oversight and enforcement of the First Principles in business transactions, while the US has effectively resisted the establishment of any comparable regulatory authority (Reidenberg 2000; Blevins 2002). The Data Protection Directive bans the transfer of personal data to countries outside the EU where adequate protection for online privacy is deemed lacking. What exactly is meant by this standard is still being determined, though there are obvious implications for US EU trade relations (Blevins 2002). Subsequent EU legislation, most notably the Directive on Electronic Commerce (2000), codied and harmonised rules dealing with electronic transactions even more specically. Most importantly, extraterritorial jurisdictional questions are based on the so-called country of origin standard, that is, companies are subject only to the jurisdiction of the law of the member state in which they are established (Wimmer 2003, 247). However, this law does not apply to the US or any other nation that is not a member of the EU. Therefore, continued trans-Atlantic cross-border

Internet Governance in a Multipolar World 113 litigation based on real or perceived harmful effects, tied to the geographic locale of online consumers, will most likely continue to proliferate. As has been evident in several recent extra-territorial court cases involving ecommerce and other online content,8 major philosophical and legal differences exist between the US and many EU member-states on appropriate limits to free enterprise and related trademark disputes. National approaches to business regulation vary greatly between the two sides of the Atlantic, the US model being more light handed and sensitive to commercial interests whereas the European model is more of a centralising and governmental one designed to promote more general economic interests (Gould 2000, 209). Such conicting perspectives are apparent in each actors respective approach to topics as diverse as online taxation, libel, and hate speech. Publishing or selling racist or anti-Semitic materials on the Internet, whether for political or commercial purposes, has been a criminal offence in many European nations for years. While the US Constitution protects even the most distasteful forms of expression as long as there are no direct threats to specic individuals or an imminent danger posed, no such protections exist in France, Germany, the UK, and most other EU states, with ISPs increasingly held liable for allowing extremist websites on their servers.9 The Growing Controversy over ICANN In many respects, the creation of ICAAN was the result of a tenuous compromise of sorts between competing factions within the global Internet community as well as trans-Atlantic national and corporate interests, brokered by the US government. In the years since ICANN was established, the stated goal of achieving a self-regulating centralised domain name system has remained elusive. Though ICANN instituted a domain name dispute resolution system in 1999 that has enabled many online intellectual property disagreements and trademark disputes to be settled in arbitration rather than national courts,10 it has continued to lack effective or complete control over most aspects of Internet governance. Several of the country code top-level domain (ccTLD) registries and regional Internet registries (RIFs) have proven to be particularly recalcitrant, refusing to shed their autonomy and recognise ICANNs oversight. Many of ICANNs problems have revolved around its evolving organisational structure that, according to the corporations bylaws, mandates consensus or bottom-up decision-making. This type of uid structure was an obvious holdover from the protocols of IETF and other old guard voluntary bodies. But because
8 Notable cases involving online trademark disputes pitting US-based rms against European companies include Chuckleberry v Playboy (1996), Euromarket Designs Inc v Crate & Barrel Ltd (2000) and Toys R Us Inc. v Step Two SA (2002). 9 For example, the case League against Racism and Anti-Semitism (LICRA) v Yahoo! Inc (2000) was based on a French law prohibiting the sale or exhibition of racist objects. The case focused on Nazi memorabilia posted for sale on an auction site hosted by the US-based server Yahoo! Inc. Even though Yahoo maintains no physical hardware or products in France, the County Court of Paris asserted jurisdiction and subsequently ruled against the company. 10 The Domain Name Supporting Organization (DNSO), subordinate to ICANN, was formed for the express purpose of arbitrating appropriate disputes.

114 David Drissel ICANN was expected to issue mandatory orders, consensus decision-making proved untenable. Critics have complained that ICANNs over-reliance on consensus decision-making rather than voting on proposals has lent itself to fabricated democracy. Allegations of undemocratic procedures lacking transparency have become common.11 Many critics have continued to question the motives behind ICANNs creation, alleging that corporate interests have been the primary beneciaries of the organisations policies. Pointing to ICANN as an example of privatising our public Internet, critics have called for the abolition or comprehensive international restructuring of the organisation.12 Confronted by numerous hurdles and internal contradictions, ICANNs leadership initiated dramatic reforms, beginning in 2002, designed to bolster the organisations agging authority. One controversial step in this regard included sharply enhanced powers for the agencys board of directors and staff. Another move involved an expanded role for representatives of sovereign states in organisational decision-making through the creation of a Government Advisory Committee (GAC). The GAC was granted voting representation on the nominating committee for new ICANN Board members, a permanent non-voting liaison position on the Board, and the power to make non-binding recommendations on any policy issue. The UN has become increasingly involved in the debate over ICANNs future and other issues surrounding Internet regulation and governance. Most noteworthy in this regard are conferences and working groups sponsored by the UN Information Technology Task Force, such as the rst World Summit on the Information Society (WSIS), held in Geneva during December 2003. Referring to the Internet as a global facility, the WSIS Declaration of Principles stresses that international management of the Internet should be multilateral, transparent and democratic, with the full involvement of governments, the private sector, civil society, and international organizations. The document repeatedly emphasises the need for improving the global coordination of the Internets underlying resources (World Summit on the Information Society 2003). These and other statements strongly imply that ICANN is somehow lacking in this regard. Most tellingly, the WSIS Declaration refers negatively to semi-private self-regulatory arrangements, noting it is not acceptable for these and related global governance frameworks to be designed by and for small groups of powerful governments and companies and then exported to the world as faits accomplis. The document calls for public interest monitoring of ICANN and other such bodies, while noting the need for a predictable policy, legal and regulatory framework at the national and international levels. The WSIS formally requested that the Secretary General of the UN establish a Working Group on Internet Governance (WGIG) which would be responsible for proposing a plan of action.
11 One frequently heard complaint is that the initial (appointed) ICANN Board extended their terms unilaterally without public input. The ICANN has also been criticised for allowing occasional Board meetings to be held in secret or without minutes or transcripts of proceedings available to the public. 12 For example, see Ralph Naders comments in Patience (1999), where he argues that ICANN has been captured by commercial interests with no real say for individuals.

Internet Governance in a Multipolar World 115 In the months leading up to the Geneva conference, ICANN had made a concerted effort to bolster its agging international reputation and legitimacy. More specically, ICANN approved the prospective formation of new local and regional at-large groups around the world in June 2003. An At-Large Advisory Committee was created for the purpose of coordinating these groups, with the stipulation that Regional At-Large Organisations (RALO) can be formed when there are a sufcient number of local groups in each geographic region. A more recent step taken by ICANN was the establishment of the Country Code Names Supporting Organisation (ccNSO) in March 2004, a new subsidiary group that reputedly represents the interests of participating top-level nation-based domains (ccTLDs) (for example,.us,.uk,.fr). Though many ccTLDs do not formally recognize ICANNs authority, others have agreed to cooperate with the organisation and participate in its governance. But in spite of ICANNs recent attempts at refurbishing its international image, the body has remained highly controversial. Many critics have continued to assail the organisations leading role in Internet governance. Such views were evident at the Freedom of the Media and the Internet conference, sponsored by the Organisation for Security and Cooperation in Europe (OSCE) in June 2003. One British delegate noted that self-regulating bodies such as ICANN operate largely outside of the public eye. Even ICANNs regional director for Europe sounded pessimistic about the agency, noting that it had become inevitably entangled in political and regulatory interests. Signicantly, he proclaimed as myth the idea that ICANN was truly international in scope and participation levels. Open processes, in this case, means if you can afford to attend it, then you can attend it, he stated. To attend and follow this process, you really need money (Starr 2003). Within the US, the debate over ICANNs future has increasingly polarised the Internet community, often pitting academics and civil society groups against business and government insiders. The Internet Governance Project (IGP) based at Syracuse University, for instance, has endorsed a multilateral approach to Internet governance which would fully internationalise ICANNs responsibilities. Milton Mueller, IGP coordinator, has called on the US government to take the lead in this endeavour, noting that global cooperation and coordination are essential for maintaining a reliable and functioning Internet. As he postulates, If the Internets central coordination functions are seen as a US strategic asset rather than as a neutral, globally shared infrastructure, the risks of deliberate disruption and politicization of the Internet can only increase (TechWeb News 2005). In contrast, Vinton Cert, a leading Internet pioneer and MCI senior vicepresident, states unequivocally that ICANN is effective, is multinational in outreach and scope, and should remain in private hands. Arguing against any major changes in Internet governance, he quipped that Engineers have a saying, If it aint broke, dont x it (McCullagh 2004). Michael Gallagher, current NTIA assistant secretary, has been particularly vocal in supporting the US-centric status quo, noting that American private sector leadership in Internet governance has been a proven success (quoted in US Department of State 2005). The level of global dissent over ICANN became particularly pronounced soon after the US government declared categorically in June 2005 that it would maintain its historic role in authorizing changes or modications to the authoritative root zone le. The government emphasised that ICANN, operating under its oversight, would continue managing the Internets domain name and

116 David Drissel addressing system for the foreseeable future. Expressing a strong commitment to market-based approaches and private sector leadership,13 the memorandum reiterated the Bush administrations opposition to any major changes in the current Internet governance paradigm. The US statement was apparently aimed at inuencing the subsequent WGIG meeting of July 2005 in Brussels, leading up to the second World Summit in Tunis scheduled for November 2005. In discussions at WGIG, representatives of developing countries such as China, Brazil, and India have repeatedly expressed concern over Americas de facto unilateral approach to cyberspace governance. An Indian delegate maintained that ICANN and other non-national governing bodies are inherently undemocratic and elitist. In their stead, it is necessary to have a mechanism which truly represents the global Internet users, he proclaimed. A Salvadoran representative echoed such sentiments, noting that real multilateralism in cyberspace governance was needed. (WGIG 2005). Delegates associated with ICANN, IETF, and the International Chamber of Commerce and representatives of other sympathetic groups also attended, though the US refused to send an ofcial delegation, thereby avoiding the possibility of having to either approve or reject any nal documents. Several delegates dismissed assertions that ICANN and other US-based self-regulatory bodies were mere lapdogs for the US government. One prominent ICANN representative from the US, rebufng such criticism, contended that the organisation had become progressively internationalised and did not speak on behalf of the US government. Another delegate also railed against the prospect of establishing any new Internet governance body, noting, [t]he creation of a new body would be duplicative, counterproductive, and unnecessarily costly (WGIG 2005). Signicantly, WGIGs nal report recommended the establishment of a new UN-afliated global multi-stakeholder forum in which Internet-related public policy issues would be addressed. Four alternative models for Internet governance reform were proposed, scheduled for further consideration at the November 2005 conference. Only one of the four models came even close to endorsing ICANN, albeit with important qualications and recommendations for enhanced international input regarding policy decisions. The other three proposals called for dramatic changes in the status quo, with the establishment of various new global governance bodies designed either to replace or directly manage ICANN. In an apparent rebuff to the US, the report noted, no single government should have a pre-eminent role in relation to international Internet governance (de Bossey 2005, 10 12). Conclusion and Way Forward Proposals The Internet has been described as a borderless global communications medium, effectively situating electronic commerce beyond the regulatory reach of any single nations political or legal jurisdiction. Seemingly transcending geography, the Internet nonetheless has been the focal point of some of the most intense geopolitical and organisational turf battles in the contemporary world. With
13 For the US governments statement, see National Telecommunications and Information Administration (2005).

Internet Governance in a Multipolar World 117 literally millions of nancial transactions occurring online daily, many nations have attempted to impose unilateral rules and regulations on a networked transnational infrastructure. Several observers have concluded that cyberspace has become a jurisdictional quagmire as a result,14 sinking inexorably into a battle over the digital assets of competing nations, agencies, and rms. Seeking to govern what was once depicted as inherently ungovernable, numerous parties have sought to tame the electronic frontier. But with competing extra-territorial claims over domain names and other informational resources, national governments have instead introduced more differentiation, uncertainty, and instability into the mix. Fuelled in part by a digital divide between the technological haves and have-nots, the battle for the heart and soul of the Internet has reached a fever pitch, without any denitive prospects for achieving a global consensus. The days of cold-war era bipolarity and unquestioned American hegemony over the Internet have evaporated, leaving in their stead new multipolar ssures. China, for example, has complained about being allocated only nine million global Internet addresses, compared to almost twice as many for Stanford University in the US (McCullagh 2004). Like many contemporary issues, the debate over Internet governance not only divides developed from developing nations, but also exposes important new rifts between the US and its traditional European allies. It is important to note that not all relevant national laws and Internet regulations can or should be harmonised. For example, issues revolving around website content and socio-political proclivities such as whether or not to allow certain forms of online expression and related merchandise are probably irreconcilable for the foreseeable future. Nonetheless, the determination of appropriate jurisdiction for extraterritorial regulation and related jurisprudence should be codied more directly into international law. Online privacy rights and laws, though divergent in the US and Europe, convey some semblance of an emerging harmonisation, particularly around the so-called First Principles. These principles should be further discussed and codied into multinational treaties and related regulations. No one can deny that online transactions often have real world consequences. The effects of the Internet on nancial markets and social norms are obvious. Illicit activities, controlled or criminalised in many jurisdictions, are no less deleterious if pursued online than ofine. The days of depicting the Internet as a parallel universe, neatly demarcated from ofine pursuits, are long gone. The libertarian ethos of a self-regulating Internet seems almost quaint in retrospect, though understandable in historical context. Fears of intergovernmental intrusion into cyberspace are certainly warranted, but the opposite tendency of privatising an inherently public resource is equally problematic. Private ordering of the Internet is no less bureaucratic and cumbersome than public sector regulation, as is clearly evident in the ever more complex and fragmented hodgepodge of self-regulating agencies and other assorted bodies. The danger of prots taking precedence over prudence enters the picture when semi-private US-based corporations effectively impose unilateral regulations on consumers worldwide. In this regard, haphazard and uncoordinated policies
14

For example, see Johnson and Post (1996).

118 David Drissel seem destined to fail. Several intergovernmental agencies such as the ITU and WIPO have likewise endeavoured to impose their own brand of regulatory provincialism in cyberspace, with often-contradictory results. The organisational prerogatives of various public and private bodies often blur together and overlap to such an extent that the consumer/citizen is left bewildered. Who is really in charge? Who, if anyone, governs the Internet? Certainly some progress has been made in dening and harmonising regulatory oversight of the domain-naming system. The ICANN, despite its organisational shortcomings, has devised a relatively streamlined process for resolving domain name disputes. Allowing parties to settle disputes in arbitration, rather than clogging national courts with extra-territorial suits, has been a step forward. But ICANNs origins and charter are ultimately too intertwined with American interests to be truly effective in this regard. Contractual obligations to the US Department of Commerce, coupled with perceptions of preferential treatment for corporate trademarks, have muddied the waters to such an extent that the international legitimacy and credibility of the organisation are dubious at best. As has been apparent at recent UN sponsored gatherings, many in the world view ICANN as a subterfuge for asserting American hegemony in cyberspace. The Bush administrations latest declaration afrming the USs indenite unilateral control of the root zone le has further fuelled such concerns. In spite of ICANNs recent efforts to reform and internationalise its organisational structure, there is little hope that it can truly redeem itself at the global level. For this reason, the best course of action is to charter a new organisation that is truly international and democratic in character, scope, and authority. That does not mean that the entire ICANN infrastructure should be abolished. Rather, many of its constituent organisational structures and elements should be retained and reintegrated into a truly multilateral organisation. The UN, though far from a perfect venue, seems best poised to oversee this transformation by negotiating an orderly transfer of power from ICANN and other organisations into a new intergovernmental multi-stakeholder treaty-based body. Undoubtedly, there are inherent dangers in this ambitious approach. The possibility of technological have-nots dominating the proceedings and demanding a radical redistribution of informational resources is a legitimate concern. But for the US to stand idly by while ICANNs credibility steadily erodes is not in the countrys best interest. Unilateral posturing, likewise, is counterproductive to Americas long-term national security and economic concerns. American and European governments must therefore play a lead role in negotiating a successor body to ICANN; otherwise they risk becoming irrelevant in both the process and the outcome. The risks to the wealth, inuence, and prestige of these nations are too great to do otherwise. In seeking to harmonise conicting national regulations and governance regimes overseeing the Internet, all parties must take care to preserve the uidity, accessibility, and innovative character of cyberspace. Any new or reformed organisational structures should exemplify this proven pattern. Imposing rules that are too rigid or inexible could have serious repercussions not only for the Internet, but also for personal freedom and international relations. Indeed, effective Internet governance necessitates achieving the right balance between

Internet Governance in a Multipolar World 119 national sovereignty and global concerns. Multilateral cooperation and intergovernmental coordination are therefore imperative in this regard. References
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