The Body Politic: The Law of the Land

The Body Politic: The Law of the Land

BY David Alan Grier Posted: 5 Feb 2015

We like to think that technology has the ability to change the world. We bask in the idea that our age is marked by large movements of information and data, movements that were impossible just 25 years ago. Yet, one aspect of Internet governance may ultimately change international relations by weakening the role of the nation-state and by promoting other organizations, such as corporations and non-profit groups, as international actors.

At the moment, there are currently three major strands of debate over Internet governance. While these three are often conflated, they deal with different problems and different actors. The first concerns security and privacy and how we are to maintain both on the network. This topic will largely be addressed at a national level. The second topic concerns what we call net neutrality, how Internet Service Providers deliver information to their customers. Again, this topic will have to be addressed by each national government.

The last topic concerns how a key technical aspect of the Internet is governed. This aspect is called the Internet Assigned Numbers Authority or IANA function. The IANA function sets standards for how the Domain Name System operates. It also directly controls the top level domains, the extensions such as .uk, .jp, .cn and the other parts of internet addresses that fall at the end. Every user of the Internet and every country in the world makes use of the IANA function, at least indirectly. Without it, the internet would not be able to function. At the moment, this system is handled by a private company that is overseen by the U. S. Department of Commerce.

The current debate over the IANA function proposes to replace the Department of Commerce with another institution that would be more international and more representative of Internet users. The Obama Administration is proposing that this new institution be a multi-stakeholder institution, something that would be new to the international system and would have the effect of elevating the role of private corporations in international decisions.

The International System

The current international system gives countries power of corporations, rather than the other way around. This system, which was established by the Treaties of Westphalia in 1648, defined the concept of the state and acknowledgde that the state has sovereign control of all activity within its borders. It recognized that countries can define laws of incorporation and regulate the activities of companies within its boarders.  Of course, as in all politics, there is plenty of give and take between companies and corporations. Companies regularly try to influence countries and alter business regulation. As a fundamental principle, national governments ultimately have authority of companies and not the other way around.

This principle applies to international corporations as well as domestic companies. For a corporation to do business within a country, it either has to be incorporated within the country (or have a subsidiary that is incorporated in the country), or else it has to work with a partner that is incorporated in the country. In both cases, the corporation is subject to the law of the land.

For the most, part the Internet follows the principle that countries have the right to regulate its activities. The Internet is a network of networks. Most of its component networks, work within the boarders of nation states and therefore are subject to national regulation. A few of the biggest networks, generally identified as Tier I and Tier 2 networks, operate connections that fall well outside national boundaries. These connections, most of which are undersea cables and satellite links, are governed by international treaties and hence are formally part of the international system.

However, one aspect of the Internet does not fit neatly into the current international system, that is the IANA function, the process that records and assigns network addresses. This function includes the governance of the Top Level of the Domain Name System. Furthermore, the current administration has proposed a way of overseeing the IANA Function that would push the international system in a new direction. That approach, which attempts to incorporate nearly 20 years of discussion about the Internet, is called “the multi-stakeholder approach.” This approach would put the oversight of a the IANA function into the hands of a political group that would include not only the representatives of nations but also of corporations, civil society groups, and, perhaps, even technical groups.

Like the Internet itself, most of the Doman Name System operates under the control of national law. Each nation has a domain registrar. Those registrars are companies. While they employ the standards of the Internet, they still operate under the laws of a country. However, the process that assigns the top level domains, the last parts of a url, such as .jp, .uk, or .cn, operates in a slightly different way. It is handled by the company ICANN under a contract with the U. S. Department of Commerce, or more specifically the National Telecommunications and Information Administration(NTIA). The Obama Administration is proposing that it will end the relationship between the NTIA and ICANN on 30 September 2015 provided that ICANN can create an international multi-stakeholder institution that will replace NTIA.

At first glance, the proposed multi-stakeholder organization does not seem that radical. However, it alters the common structure of international organizations. For the past seventy years, we have had a fairly standard practice for handing issues that fall outside of the jurisdiction of the nation state. We create an international organization that is managed by representatives of the nation state. The United Nations is the most prominent example, as are many of its independent agencies such as the World Intellectual Property Organization, World Meteorological Organization, or the International Telecommunications Union.  In addition, there are independent international organizations such as the World Trade Organization, International Standards Organization. All of these organizations represent agreements among nations and all of them are overseen by representatives of nations.

Many have argued that the IANA Function should be overseen by the UN or some other international organization. In December 2012, the International Telecommunications Union passed a resolution declaring that it would be the institution to oversee the Internet.

However, many critics have noted that International institutions are never the most flexible organization, nor do they fully represent all the interests in any particular subject. In such organizations, each country has one vote. The vote from a country that has almost no internet assets is the same as the vote of a country that hosts a large fraction of those assets.

The Debate

The debate over how to oversee the top level Domain Name System has been long and contentious. If you want a sample of it, you can turn to the records of the Internet Governance Forum (http://www.intgovforum.org/cms/). They reveal that a large part of the Internet community would not be pleased with a conventional international organization governing the IANA Function. At the same time, those records also show a growing discontent with the status quo, in which the United States Government is the ultimate guarantor of the IANA Function. Part of that discontent is not based on a clear understanding of the issue. Many an individual will suggest that the IANA Function can somehow influence the openness, neutrality, or security of the Internet. While it certainly has some influence over these issues, that influence is minor compared to other aspects of the system.

So in an effort to get a consensus about the next step for the Internet, the current administration has proposed a multi-stakeholder approach, an organization that will include not only representatives of nation states but also of capital, technology, and political ideas. This idea may have merit and it may succeed, but it would be a new addition to the international system, a system that has its roots in treaties that are over 350 years old. Furthermore, we can’t point to obvious examples of successful, large multi-stakeholder international institutions. There are no good models for such an institution to follow.

Historically, few international issues have truly called for multi-stakeholder institutions. The most likely example of such a issue, the governance of international telecommunications networks, has several aspects that make it quite different from the IANA Function. The International telecommunication network was developed when most telecommunications companies were either state-owned enterprises or state-sanctioned monopolies. Hence, they were easy to organize with a conventional international organization with representatives from countries. Furthermore, there is no international telecommunication service comparable to the IANA function. There is no single operational organization that is supporting all of the world’s telecommunications system.

The Future

While we have no good examples of successful multi-stakeholder international organizations, we cannot reject the claim that such an organization will necessarily fail. Such an organization may well succeed. If it does succeed, we can again say that the Internet has radically changed the world because it will have elevated corporate, organizational and technical interests in the international system.

Yet, we may ultimately find that a multi-stakeholder organization is unstable and that it will eventually revert to an institution in which the country representatives play the dominant role and the other stakeholders hold subservient positions. Such a result would not be especially surprising, but it would suggest that Internet technology is not quite as radical as we like to think it is.

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David Alan Grier is the author of numerous books on technology and writes “Erranthashtag” for IEEE Computer.  He is a Fellow of the IEEE and a Past President of the Computer Society.

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