Appeared in the Toronto Star on November 14, 2005 as U.S. Must Share More Say on How Internet Is Run
Appeared in the Ottawa Citizen on November 17, 2005 as A Change Is In Order

This week the regulation of the Internet takes centre stage at the World Summit on the Information Society in Tunisia.  Initially intended to address the growing digital divide, the WSIS has instead been dominated by politicking over Internet governance concerns.  A deep split has emerged, pitting the United States (which favours the current system) on one side and the European Union (which prefers a multilateral approach) on the other.

In recent weeks, the rhetoric surrounding the issue has reached a fever pitch.  From the United States and its supporters’ viewpoint, support for reform is a thinly veiled attempt by countries such as China, Libya, and Iran to impose new Internet censorship measures.  

U.S. leaders have expressed fears about a “digital Munich” and a United Nations takeover of the Internet, while the U.S. Congress has passed resolutions demanding that the U.S. maintain its current control over the Internet’ s technical functions through the Internet Corporation for Assigned Names and Numbers (ICANN), the California-based non-profit entity that ultimately answers to the U.S. government.

If policy makers and political leaders are to resolve this issue, the starting point should surely to move beyond these inflammatory claims, many of which are patently false.  Instead, they should start by acknowledging three key facts.

First, the current system requires change.  ICANN was born in the late 1990s amid visions that the U.S. government would quickly surrender control over the core functions of the Internet.  Earlier this year the U.S. reversed course, defiantly stating that it has no plans to relinquish that control.

Given the U.S. position, it is difficult to fault the European Union and other foreign governments for expressing discomfort with a system that grants ultimate control over the Internet to a single government.  Dozens of countries, including Canada, have identified the Internet as a critical public resource that plays an essential role in commerce, communication, and the delivery of social services.  While it is unlikely that the U.S. would intervene to shut down the domain name system of any other country, the mere threat that such a power exists is justifiably worrisome to many government leaders.

Second, ICANN has consistently angered the Internet community by developing policies with little transparency or public consultation.  During the past five years, control over country code domains has been transferred with scant warning, establishment of new domain name extensions (such as dot-biz or dot-xxx) have been subjected to mysterious approval criteria, and critical issues such as the development of privacy protections for domain name registrants have languished.

Although its supporters point to recent ICANN board appointments as proof that the organization is responding to criticism, its recent settlement of a contentious dispute with Verisign, the company that manages the dot-com registry, has all the hallmarks of the “old” ICANN with an unexpected deal that grants Verisign seemingly indefinite control over a domain name registry system worth billions of dollars.

Third, creating an ICANN alternative need not lead to U.N. control over the Internet nor to greater global censorship.  

Contrary to many published reports, the EU has not advocated a U.N. controlled system.  Rather, it has called for the creation of a new forum built on existing structures.  The forum, which would match the multilateral approach that has proven successful in many other areas of shared interests such as global environmental policy and telecommunications, would elevate public policy issues to a multilateral venue, while leaving the day-to-day technical functions to a private sector led system.  

There is also no reason to believe that greater global censorship is the likely consequence of a new system that provides all governments with a voice on Internet governance issues.  Indeed, the adoption of a multilateral system would mean that no single government – whether it be the U.S. or China – would wield sufficient control to impose its policies on others.

Although it is true that national governments would be free to establish controls over Internet use within their own borders, they already enjoy such powers.  China may have instituted troubling censorship controls, but many democratic countries have also created national rules that limit online freedoms.  

For example, tomorrow the Canadian government is expected to introduce the Modernization of Investigative Techniques Act, legislation that will compel all telephone and Internet companies to create and maintain infrastructures that are capable of interception and to provide access to basic subscriber contact information such as name, address or telephone number.  If enacted, MITA will unquestionably create new limits on Canadians’ right to personal privacy and anonymity on the Internet.

If negotiators are able to shift from rhetoric to reality, a suitable compromise should be based on the principles of transparency, inclusiveness, and respect for national sovereignty.  

Transparency will facilitate the development of Internet governance policies in an open, predictable manner with input opportunities for all stakeholders.

Inclusiveness will ensure that no single government retains ultimate control over the Internet’ s core functions.  Moreover, it will require a greater voice for more than just national governments – civil society, corporate interests, and technical experts must also play an important role in the decision making process.

Respect for sovereign choice means accepting the inevitability that some governments will adopt policies that we may find objectionable since the right for democracies to make choices that support online freedoms is premised on the same principle – namely, that national governments are entitled to make their own domestic choices free from interference provided that they are consistent with international law.  

The current Internet governance system does not meet these principles.  This week’ s meeting in Tunis provides a long overdue opportunity to change that.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.