The Internet Needs an Independence Day

June 2, 1999 • Commentary
This article appeared in the Journal of Commerce on July 2, 1999.

When Paul Revere rode out to warn that British troops were marching on the arsenal at Concord, he had a rough night ahead of him. Ambushed by British forces, he never finished his ride.

Today Revere could just warn the colonists by e‐​mail. Indeed, if he were alive today, he would be warning of a new force on the march.

While we sleep, the Internet Corporation for Assigned Names and Numbers, ICANN, is creating a mechanism to subdue the Internet. The U.S. government created ICANN to administer a few technical rules. But ICANN seems poised to make itself an international government for the Internet, not a technical‐​standards body. ICANN’s regime is neither democratic nor constitutional.

The equipment that makes up the Internet is scattered all over the world. This decentralized arrangement makes the Net hard to govern. Some technical tasks are controlled by just a handful of people. For years, the Net was run by just one man, Jon Postel. Before his death last year, he worked quietly out of a California think tank, assigning the numbers computers need to find other computers.

A single company under contract with the U.S. government, Network Solutions (NSI), matched Postel’s numbers with .com, .net, and .org domain names. NSI hands out these addresses and keeps a “root server” updated to make sure all the computers around the world could find Internet addresses.

This is the domain‐​name system.

Whoever controls the domain‐​name system controls the Internet. Countries, companies, and individuals could vanish from the Internet overnight at the whim of the domain‐​name administrators. And as control passes from NSI to ICANN, the domain‐​name system’s independence from the government is under siege.

The U.S. government created ICANN to replace Postel and to insure competition for NSI. ICANN is supposedly a private enterprise, but its relationship with government is a cozy one.

ICANN’s legitimacy depends on government support but lacks any specific statutory mandate. Without a clear public/​private boundary, ICANN quickly evolved into a mysterious elite of broad powers. On what authority were the members of ICANN’s current “interim” board appointed?

No one knows. The interim board was supposed to begin by electing a permanent board and then get out of the way. But the interim board has barely moved toward this goal. ICANN’s last meeting was at a five‐​star hotel in Berlin, far beyond the reach of the average Internet user. The meetings of the board are closed.

ICANN is influenced by a government advisory board — in more closed meetings — whose members include representatives from bureaucratic giants such as the International Telecommunications Union, the World Intellectual Property Organization, the European Union, and the European Council. Is ICANN becoming a puppet of this board?

In Berlin, ICANN endorsed in principle a WIPO report on trademark issues at the urging of the board, and called for its membership to develop the controversial dispute‐​resolution mechanism of the kind supported by WIPO.

That means that ICANN is willing to be pressed into top‐​down decisions on major policy issues, such as whether trademark disputes go to private arbitration or the courts.

CommunicationsWeek reports that the advisory board has begun to mutter about how ICANN could be used to enforce an e‐​commerce tax policy for the Net. Now that the governing institution is in place, there is no limit to the projects it could undertake.

Jon Postel did the job ICANN was supposed to do with a staff of two and a budget of $250,000. ICANN has a budget of $5.9 million, countless committees, and lofty and suspect ambitions.

ICANN is now the government of the Internet. With its elite meetings and expensive retreats, it is not a democratic government. Nor it is a constitutional government. Where does ICANN’s authority come from? How can abuse be prevented?

Founding documents and institutions matter — the ideas outlined in the Declaration of Independence and in the Constitution played a crucial role in shaping America’s future. This basic guidance is completely lacking for Internet governance.

Is technology the answer? A few pioneers have tried to route around the central domain‐​name system. It could be done. If ICANN squeezes too hard, it will. But technological alternatives that would require people around the world to abandon the current system are unlikely to catch on easily. ICANN is counting on exclusive — and government‐​protected — control of its domain.

The promise of technological bypass offers little comfort to those trapped in ICANN’s gears. And there is no need to deconstruct the Internet; it was working fine before ICANN. The Internet community should limit ICANN’s authority while that is still possible. Maybe e‐​mail and Web sites like the forthcoming ICAN​Nwatch​.com will provide a bottom‐​up substitute for a constitutional right to petition.

The Internet has given many people around the world the power to write their own Declaration of Independence. But they’ll first have to wake up.

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