This is the first in a series of articles that will explore the issue of Internet governance, and how it relates to issues that creators care about.
Transparency and accountability. Two words with profound significance this year as the US government considers relinquishing control over key aspects of Internet governance to the private sector. An immensely broad and rapidly growing area of law and policy, Internet governance focuses on the development and application of shared principles, norms, rules, decision-making procedures, and programs that shape the evolution and use of the Internet. Rapidly growing with Internet governance has been the Internet’s dominant position in society, and the challenges that accompany it. While the Internet has become a liberating tool, it has also become a tool for bad actors and authoritarian regimes. It is thus vital that we, as a free society, define transparency and accountability in a way that ensures that the Internet can enable the public to engage in legitimate activities while inhibiting encroachment on such activities.
Though the Internet is a highly distributed system of networks, the complexity of its infrastructure requires a focal point of management. This is accomplished through the Internet Corporation for Assigned Names and Numbers (ICANN). A nonprofit organization established to manage some of the more technical aspects of the Internet, one of ICANN’s responsibilities lies in overseeing the Domain Name System (DNS). The DNS functions to ensure that when users enter an Internet address or type an email address, it takes them to their desired website or sends a message to the desired recipient. Though ICANN is technically private, some of its primary technical functions are carried out through the Internet Assigned Numbers Authority (IANA), which ICANN has managed under contract with the National Telecommunications and Information Administration (NTIA), an agency within the US Department of Commerce.
There has long been tension between ICANN’s role in managing what has become such a globalized communications tool, and the United States’ role overseeing the IANA functions, and since the creation of ICANN in 1998, the US Government has communicated a commitment to transitioning these functions completely to the private sector. Approximately one year ago, that commitment crystallized when the NTIA finally announced its intent to transition key Internet domain name functions to the global stakeholder community, with a goal to develop a meaningful transition proposal before September 30, 2015 (the date that the current IANA functions contract expires). What this means is that, theoretically, the United States will no longer have direct oversight over the security and stability of the Internet’s infrastructure.
In the wake of this, the Senate Commerce Committee held a hearing on “Preserving the Multi-stakeholder Model of Internet Governance.” With ICANN potentially giving up its accountability to the US government, the concern in Congress, and among many others, is that a poor transition without proper safeguards in place could lead to an ICANN that lacks proper oversight, or potentially worse, an ICANN that is captured by authoritarian regimes seeking to control critical Internet functions.
The Internet is seen by many as a beacon for freedom. No technology has ever provided such unprecedented access to knowledge and information. But what is Internet freedom, and what does a free Internet truly mean? During the Committee hearing, Senator Daines of Montana voiced his concerns about protecting US intellectual property abroad to witness Fadi Chehadé, the current CEO of ICANN. Chehadé’s characterization of ICANN was very narrow, as he insisted that ICANN plays a purely technical role, not a regulatory role.
Conveniently, Chehadé did not discuss some of ICANN’s various commitments related to consumer trust. Most importantly for content creators, these include ensuring that the “Public Interest Commitments” are enforced. In 2013, ICANN announced that it would allow for registration of hundreds of new generic top-level domains (gTLDs). We know gTLDs currently as domains like .com and .org, but we will soon know them as domains like .music, .movie, .sports, and hundreds of others. Part of ICANN’s agreement with the operators of new top-level domains (the registry operators), these Public Interest Commitments provide certain commitments that any new registry operator must agree to in order to operate a new top-level domain. One such commitment is that the registry operator promises to require entities selling domain names (the registrars) to include in their own agreements with end-users a provision prohibiting those that register a website from engaging in illegal activity, including, “piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law.” In order to enforce these provisions, the registry operator will, “consistent with applicable law and any related procedures,” provide consequences for these activities, including suspension of the domain name.
This does not mean that new laws are being implemented to protect intellectual property, or that ICANN has a license to contravene requirements of due process. What this does mean is that those making money off of the business of registering domain names have some type of accountability. It puts pressure on these registrars to ensure that they are not selling space on the Internet to those that intend to use that space for illegal purposes, such as copyright theft, and it does so in a way that mitigates any potential chilling effects of pressuring end-users, by instead placing the focus on intermediaries. In order for these provisions to have meaning, however, it is essential that complaints of copyright abuse and other violations be sufficiently addressed by ICANN in a way that ensures that each party in the Internet ecosystem has an incentive to uphold the law.
These questions—about how ICANN cooperates to prevent bad actors—are important because they go towards what our definition of “Internet freedom” will be as a society. That definition is directly affected by how we value transparency and accountability. In voicing his concerns at the hearing, Senator Daines noted that it is the lack of adequate enforcement against illegal activities that are responsible for the decline in Internet freedom. Ironically, some groups idealize the independence and freedom of the Internet to argue that it is precisely enforcement of the law that is responsible for the decline in Internet freedom. They conflate regulations intended to protect private rights of Internet users with regulations seeking to inhibit the openness of the Internet, based on the ill-conceived notion that any restriction on the flow of information is itself a form of censorship or repression.
It is worth noting something Vint Cerf, one of the pioneers of the Internet, wrote a couple years ago, following the Arab Spring, which put the issue of Internet freedom into heavy focus. Arguing that technology is an enabler of rights, and not a right itself, Cerf stated, “It is a mistake to place any particular technology in this exalted category, since over time we will end up valuing the wrong things.” Pointing out how Internet access is not a human right, as it is a means to an end, Cerf continued:
“Yet all these philosophical arguments overlook a more fundamental issue: the responsibility of technology creators themselves to support human and civil rights. The Internet has introduced an enormously accessible and egalitarian platform for creating, sharing and obtaining information on a global scale. As a result, we have new ways to allow people to exercise their human and civil rights. In this context, engineers have not only a tremendous obligation to empower users, but also an obligation to ensure the safety of users online.”
The problem with the oversimplified views of Internet freedom is that they emphasize privacy and expression to a point that they completely overshadow security, private property, and upholding the rule of law on the Internet. By seeing the Internet itself as a human right, they overlook the responsibility of technology creators to operate in a manner consistent with the law; and by extension, in a manner consistent with the observance of human rights. A free and open Internet, however, should mirror a free and open society: one in which people can engage in legitimate activities while those engaging in illegitimate activities are held accountable. One in which the rule of law continues to be relevant, such that cyberspace does not become a case study on the “broken windows theory.” One in which all parties that benefit from the Internet’s potential share responsibility for protecting that potential. One in which creators can take advantage of the expanded opportunity that the Internet brings, knowing that their market will not be undermined by bad actors. Internet freedom thus depends on strong transparency and accountability, for society would be poorly served if freedom was defined to allow unrestrained conduct that disregards the interests of others.
The transition of ICANN’s key technical functions to a global stakeholder community present numerous challenges to Internet freedom as we work to determine how ICANN can remain transparent and what accountability mechanisms will be in place. One thing remains certain: as a non-profit organization and the primary organization governing the Internet, ICANN should stay committed to serving the public interest and the rule of law.
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