According to a memo circulated by the U.S. government, the ITU negotations in Dubai in December 2012 will not be a “Battle for the Internet”. That’s the kind of copy Vanity Fair introduces in an article. If you would believe the talk of the town and the U.S. memo this is not really the case. China and Russia may well take over the ITU, even though Mr Hamadoun Touré is a versatile secretary general of the International Telecommunication Union, but the ITU as such may not now turn into a new ICANN. If you believe it, which I currently do. Having said this, one interesting question is – what should ITU do, if it would become the international government of the Internet?
I think the main thing is to appreciate that we have no idea what the Internet is yet. Any regulation will therefore need to be revised very often, probably several times per year. Unless, of course, innovation is to be stifled, which probably some would think is quite a good thing.
The Internet is still an A-ford
In my opinion it is too early to regulate the Internet. I have championed this opinion in public since 2001, but I still think the same. Back then it was ICANN that was controversial (well, still is!). Today it is the ITU.
In an editorial published on Vison’s website on June 7, 2001, Pontus Forsström (now married and named Pontus Schultz) claimed that it is important to put the power stamp on ICANN, “and thus force the organisation to play according to the democratic rules of the game”.
Sweden’s former Prime Minister Carl Bildt (currently foreign minister of Sweden, but we are not a banana republic, promise!) was the Chairperson for ICANN’s At Large Study Committee, whose mandate it was to investigate the democratisation of ICANN. The ICANN organisation is in itself controversial, but it is ICANN’s intention to act as a technical coordinator for the Internet.
In his editorial, Pontus Schultz states that “Carl Bildt’s group, which is presenting a proposal this autumn, plays a key role in that development (of making ICANN play accoring to the democratic rules of the game). The question as to how ICANN’s Board of Directors is choosen is crucial for the credibility of the organisation. A global democratic procedure is an enormous challenge”.
Bildt commented on his own job in one of his weeekly letters of the second week in June, 2001. After the usual international digressions (with Saudi Arabi and Sudan now having replaced the Balkans), he offers interesting thoughts around the future and claims that there are two solutions to “the problem”:
“One is to introduce some kind of global Internet democracy where one e-mail address equals one voice. The other one is to set up a system whereby the more technical side of self-regulation that has dominated Internet since its childhood, is refined.”
In retrospect, I would like to ask which problems ICANN will solve. Only when this question is answered will it be useful to address how its members are to be chosen. That in itself is an immensely difficult question – just compare it with the United Nations (UN). But it is important to define the game-plan of the organisation. This was never done when ICANN was formed from the work with The International Forum on the White Paper (“IFWP”). The engine of a speeding train was simply exchanged. No one asked where the rails were leading to. The importance was that the responsibility of the now deceased Jon Postel’s IANA, could quickly be transferred. Postel’s terminal illness was lurking like a Salieri in Forman’s drama waiting to harvest the genius’ soul, though no one said so aloud.
The main question of the ICANN has been the new top level domains and the distribution of national top level domains. IANA should ,according to Postel’s vision expressed in RFC 1591, stay away from politics. Postel’s insight is clear in the conclusive sentence: “The IANA is not in the business of deciding what is and what is not a country.”
ICANN is today nothing but politics. International politics. The successfull and international renowned (and rightly so!) peace coordinator from Bosnia has been called upon to investigate. Postel’s visions were buried with its author. It is my opinion that it is time to honour Jon Postel by going back to his original ideas and to avoid top-level politics, which Pontus Schultz would like to see come to fruition back in 2001.
The question is whether the Internet should be globally regulated to an extent going beyond the distribution of domain names and, if so, who is to do it?
Lawrence Lessig, professor at Stanford Law School, often states in a well-articulated manner that it is the program code itself that defines Internet’s legal landscape – “code is law”. The program code must therefore be controlled somehow. Lessig’s answer is often “free software” or “open source”, as well as some kind of government regulation. Like the undersigned, Lessig views ICANN’s role as very limited: “Its job is not to become the trademark police; it is not to be the tool of intellectual property; its job is not to set policy for the Internet generally (beyond defending the decentralized architecture of the original Net); nor to create artifical scarcity, or choke points of power. ICANN cannot be permitted to claim a mandate beyond the narrow tasks described in its charter.”
David Post, Associate Professor of Law at the American Temple University School of Law sees Internet more a physical space in a legal sense (“Cyberspace”), which can demand its own regulation separate from that of nation states, governed by the market and preferably by laissez-faire. As far as I am concerned, Internet is already regulated by national legislation. This is because the Internet, as opposed to Post’s claim, is not an isolated phenomenon but part of society with many of its principles having been established in early Rome. A succesful regulation of Internet is, in Post’s world, a lack of regulation. Post’s position is quite libertarian, but if one looks closer at his argumentation, it becomes clear that Post’s position is close to that of Lessig’s. The key difference between them is their view of just how much the nation state should participate in the regulation of the Internet. Lessig has a more positive view of state intervention than Post.
“Internet needs to be thoroughly regulated”, said Björn Rosengren, Minister for Industry, Employment and Communications, to the Swedish Central News Agency in connection with a talk under the Inet 2001.
“But it is a difficult balance when it comes to having both a powerful set of rules and flexibility to enable the Internet to develop in different ways”, he continued. Exactly how Rosengren imagines the Internet be regulated and in which aspects is thus not clear. It is obvious that he has thought of doing something about “the problem”. “Thoroughly”. This was in 2001. Perhaps now he has thought about this thoroughly, but I will not be mean enough to actually ask him.
The Swedish legal visionary Nicklas Lundblad writes in his book Teknotropier about the regulation of the Internet. Lundblad soberly pointed out that laws that are not followed lose their legitimacy, and he mentions the Personal Data Act as an example. Lundblad also sees a need, for example, of reforming the copyright after Napster. I believe it is hard at this point to draw a far-reaching practical solution of peer-to-peer technology, but Lundblad’s reasoning is interesting since it highlights the problem with Internet regulation. This technology is still very young and things are constantly taking place affecting the use and the view of Internet.
It would have been difficult to develop contemporary traffic regulations when Henry Ford realized his first attempt at mass producing a car of a standard model that could be sold at a low price to the general public. The first model. introduced in 1903, was called an A-ford, the second one B, the third C, and so on.
Pontus Forsström, Carl Bildt, Björn Rosengren and others were back in 2001 trying to create a regulatory framework for the Internet when the nature of the beast is still quite unknown.
In 2001, you knew nothing of Facebook, Instagram, Twitter, Pinetrest, Tumblr, Bambuser and so forth. Also, The Pirate Bay was not around. What would the Internet have looked like if we regulated it in 2001? Most probably it would have been different. Perhaps not for the bad. We will never know.
Only when the Internet is at the stage of Henry Ford’s T-ford will it be useful to discuss whether we should have left or right hand traffic on the Net. We are still far from the Internet’s equivalent to the airbag. Internet is not even ready for the introduction of traffic lights.
It is primarily for this reason that I think one must be careful with regulating the Internet. At least until we know what the problem that needs to be solved is. Perhaps we can find a few ground rules for which we can find a standard, like the right to Internet access, the right to link, the right to opinions on the Internet, and the right to use Internet anonymously. Such regulation could be established both by business agreements and by international treaties and national legislation. A more sophisticated or detailed regulation is out of the question as far as I am concerned. It is too early, whether one is Post, Lessig or Rosengren.
ICANN may survive. In any event, I do not see ICANN or its substitute as anything else but a distributor of new top level domains. I agree with Lessig that ICANN lacks authority. It should not be changed. The ITU has no business in moving into becoming a government for the Internet, and hopefully the U.S. government is correct in that this is not happening, at least not now. It has the same lack of authority as ICANN. Most importantly, any regulation of the Internet will be flawed, due to the rapid change of it. Of course, thay may in itself not be an argument for not regulating it to some people, but any regulation may stifle innovation and therefore I think one should obtain a pragmatic perspective and keep it as in (unregulated on a global scale, more or less, with some local variations for specific uses, like copyright).
The Internet is still an A-ford. It was in 2001 and it still is in 2012. We must come to terms with this. The regulation of Internet must be given time. If there is a power-grab for the ITU, so be it, but please do leave the Internet alone. The Internet is like Kevin in the movie Home Alone. It can take care of itself.
Mikael Pawlo