International internet Policy Priorities: IGP advises the NTIA

The Internet Governance Project has prepared a draft response to a Notice of Inquiry (NOI) issued by the U.S. Commerce Department’s National Telecommunications and Information Administration (NTIA) on “International Internet Policy Priorities.” We were happy to see that the NOI asked specifically about challenges to free expression and the free flow of information online, and solicited comment on what the US government could do about them.  There is also a section asking about the future of “the multistakeholder approach to Internet governance,” which includes the famous question that Senator Ted Cruz forced the NTIA to ask: “Should the IANA stewardship transition be unwound?”

IGP’s comments have come in ahead of the formal deadline, which is July 17. So we are publicizing our comments and soliciting feedback from fellow academics and civil society organizations. We are willing to add the names of any organizations or individuals who endorse the comments. You can give us feedback through the comment function on the blog, or email us. If you do have comments, we’d ask you to review the entire document. What follows below is just a summary of the highlights.

Access the draft here: IGP Comments on International Internet Policy Priorities

Defending the IANA transition

We drafted a rather detailed response to the IANA question. Our view is that once one understands the rationale for the IANA transition and the reasons why it should not be reversed, it is easier to understand the present and future of the “multistakeholder approach” to Internet governance.

In 1998, the IANA functions were placed in ICANN, a California private nonprofit public benefit corporation. This happened because we wanted to have global rather than national governance of the domain name system and other IANA functions, and because we wanted to allow the Internet community to govern itself rather than being controlled by governments. The Internet’s great contribution to society is universal interoperability in data communications. To maintain that compatibility, policy and coordination for the net’s globally unique identifiers (domain names, protocol/port  numbers and IP/AS numbers), also need to be globally consistent. ICANN created a transnational governance regime rooted in private actors to avoid a governmental regime that would be fragmented around multiple national laws. Globalization through privatization was the approach.

That there should be an IANA transition was U.S. policy from the beginning. The intention to relinquish US government oversight and move it to an accountable, private sector-based nonprofit was articulated clearly in the 1998 NTIA Statement of Policy. We note that the U.S. also privatized the NSF’s Internet backbone and routing functions in 1995, and in 1996 Congress passed the Section 230 immunities for Internet platforms. All these actions gave private actors on the Internet a great deal of freedom to catalyze a global user base, self-govern and innovate. If the US has a world-dominant Internet industry now these early moves are a big part of the reason.

Thus, the IANA transition epitomizes the multistakeholder path on which ICANN and its community embarked in 1998. Reverse the transition, and you are throwing the Internet back into the world of control by national governments and intergovernmental institutions.  “Unwinding” the transition is just a euphemism for what would be a divisive, wrenching and destructive reversal of 3 years of the community’s work and a negation of the principles that have underlay its governance model for the past 20 years. Aside from being a bad idea, it faces severe practical difficulties, which we outline in the comments.

A continued need for the multistakeholder approach

We told the NTIA that the so-called “multistakeholder approach” continues to be an essential part of the Internet environment. It is important to have a clear understanding of what this governance model is. “Multistakeholder” is not the best word, but there isn’t a better one we can think of and anyway, we’re pretty much stuck with it. 

The defining characteristic of the “multistakeholder approach” is that nonstate actors hold governance authority. Multistakeholder governance is unique and important not because multiple stakeholder groups are involved – business and civil society stakeholders of all stripes are often  consulted by intergovernmental institutions and national governments in their legislative and policy proceedings. What makes the MS approach different is that it exists outside the sovereign state system. The IETF, the Regional Internet Registries, ICANN and the IGF all have radically different forms of organization and decision making. The only thing they have in common is that governments qua governments have no special authority. 

Why do that? Because, when the scope of governance needs to be transnational – that is, when it needs to overcome the territorial fragmentation of state authority – you have basically two alternatives. One is MS governance based in the private sector; the other is intergovernmental institutions and international treaties. Private sector-led MS institutions can achieve global governance without the paralyzing geopolitical rivalries and jurisdictional conflicts of governments. 

We contend in our comments that the MS approach should take the lead in most areas of cybersecurity, as cybersecurity threats are global in scope. IGP is exploring the feasibility of an international attribution organization rooted in non-state actors. This idea, first proposed by the Microsoft Corporation as one of three elements in its “Digital Geneva Convention” proposal, could be realized through a consortium of academic cybersecurity and Internet policy experts, private internet operating firms from various parts of the world, CERTS, CSIRTS and private security firms.

Meeting challenges to the free flow of information

The NOI asks “which foreign laws and policies restrict the free flow of information online?” The answer is: too many (and not all of them are “foreign”). There are:

• Data localization laws
• Censorship laws and policies
• Intellectual property laws
• Cybersecurity laws and policies
• Intermediary liability requirements

What to do about them? We recommended that the NTIA take initiative in three areas: trade policy, ICANN, and sovereignty.

In trade policy, the U.S. should initiate dispute resolution procedures against China’s Great Firewall. China’s overwhelming system of content blocking is a disproportionate response to its concerns with specific web pages or messages. WTO rules require issues regarding national security and public morals to be handled in the least protectionist way. It is evident that China’s indiscriminate blocking of entire domains does not meet that standard. We also urge the U.S. to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Once in, Vietnam’s data localization law could be challenged as a clear violation of the E-Commerce chapter. We also ask the U.S. government to stop linking trade agreements with liberal ecommerce chapters to expanded intellectual property rights. 

Within ICANN, NTIA needs to appreciate the potential for ICANN’s power over domain names to be used to limit free expression. NTIA should use its presence in the GAC to keep ICANN away from content regulation. Additionally, NTIA should support ICANN’s implementation of the Cross-Community Working Group recommendations on Jurisdiction. These recommendations call upon ICANN to pursue general licenses from the Office of Foreign Asset Control (OFAC) to cover transactions integral to ICANN’s role in managing the DNS and contracts for Internet resources. A general OFAC license (but not applicable to specially designated persons or SDNs) would facilitate global acceptance of ICANN’s role as provider of legitimate and neutral domain name governance. We also urge NTIA to use its veto power to keep the Governmental Advisory Committee in line. 

In our discussion of the fundamental causes of barriers to the free flow of information, we call attention to the process of alignment. This refers to the attempt by national governments to assert sovereignty over cyberspace, by imposing exclusive territorial jurisdiction and national controls in a globally interoperable cyberspace. The NTIA should meet the challenge of Internet/nation-state alignment by promoting a view of cyberspace as a global commons not subject to national sovereignty. That approach is fully consistent with its support for ICANN, a nonstate actor-based governance regime. NTIA should help build a global cyberspace governance regime analogous to ocean and outer space governance, which is designed to maintain the freedom of action of all nonviolent parties in a shared space.

This was only an overview of our comments. We encourage you to look at them all and we happily accept comments, and suggestions for improvement.