The Internet and Global Governance: Principles and Norms for a New Regime

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Since the mid-1990s, efforts have been under way to construct an international regime for global Internet governance. Beginning with the formation of the Internet Corporation for Assigned Names and Numbers, efforts at regime construction were a main focus of the 2001-2005 UN World Summit on the Information Society. However, little progress was made toward an international agreement. This reflected policymakers' ill-advised attempt to shortcut regime construction: they attempted to define regime rules and procedures without first defining underlying principles and norms. This article offers example sets of principles and norms of the type that are missing and that could provide the foundation for an Internet governance regime. The authors conclude that a framework convention would be the appropriate institutional mechanism for advancing regime construction. KEYWORDS: Internet governance, regime theory, World Summit on the Information Society, ICANN, framework convention.

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Since the mid-1990s, efforts have been under way to construct a global coordination and policymaking framework for the Internet. Such an international regime for Internet governance would be, at minimum, the sole global authority for the allocation of network addresses and domain names to users around the world. It could do much more, however--perhaps make global public policy on issues like unsolicited e-mail (spam), computer network security, and freedom of expression. Over the ten years of work on this regime, there have been several loci of activity: the Internet Corporation for Assigned Names and Numbers (ICANN), the International Telecommunication Union (ITU), the World Intellectual Property Organization (WIPO), and the World Summit on the Information Society (WSIS). Despite enormous efforts over those years, however, rather limited progress was made toward collective agreement. ICANN does perform technical coordination, but the organization did not win formal international recognition at the UN's WSIS. As for WSIS, it sought a broad solution to regime formation, but after four years of debate, it succeeded only in launching the Internet Governance Forum to continue that discussion.

In what follows, we seek to explain policymakers' very limited success to date in regime construction, and we suggest a way forward. Using concepts from regime theory, we argue that policymakers unwisely skipped foundational tasks in regime construction and immediately addressed second-order tasks. They did not attempt to forge agreements on underlying principles and norms for international cooperation on Internet governance, so that when they tried to build global rules and procedures, they had no consensus. We sketch out that process of regime construction and identify its weaknesses.

In the second half of this article, we propose sets of substantive principles and norms that could provide the initial content of an Internet governance regime. These are offered as an early draft of what could become a collective international agreement. Policymakers need to begin the task of making such a collective agreement. This could take the form of composing an international framework convention that defines collective principles and norms of the type we propose here.

ICANN, Internet Governance, and WSIS

This section sketches out the ten-year history of regime construction efforts and analyzes its modest results to date. ICANN was established as a California nonprofit public benefit corporation in 1998. Its creation was invoked by the US Department of Commerce during a public proceeding in 1997-1998 that invited international participation. ICANN took over the centralized coordination of the Internet's domain name and address assignments that had been performed by two US government contractors: University of Southern California-based computer scientist and Internet pioneer Jon Postel, who acted as the "Internet Assigned Numbers Authority" (IANA), and a company known as Network Solutions, now known as VeriSign. ICANN was deliberately set up as a private sector, multistakeholder governance organization, although it eventually included some governmental input through its Governmental Advisory Committee (GAC). It also retained its contractual relations with the US government, operating under three separate agreements. The US government maintains unilateral oversight of ICANN through these agreements.

ICANN's unique governance arrangement was prompted by two concerns. The first was an attempt to achieve global as opposed to territorial regulation of the domain name system (DNS). In forming its policy toward the Internet and global electronic commerce, the Clinton administration and major information technology executives at firms like IBM, MCI, and AOL worried that electronic commerce would be undermined by widespread assertions of territorial jurisdiction. With some legitimate cause, it feared that national governments would impose on the naturally global arena of the Internet a patchwork of inconsistent or conflicting national laws and regulations. A private sector governance authority was perceived as a way around this problem. The Clinton administration's policy called on governments to "establish a predictable and simple legal environment based on a decentralized, contractual model of law rather than one based on top-down regulation." (1) The nonstate governing authority would enter into "private contracts" with industry stakeholders that would be global in scope, rather than subject themselves to a welter of different laws based on territorial jurisdictions. Regarding domain names in particular, the United States proposed in mid-1997 that "it may be possible to create a contractually based self-regulatory regime that deals with potential conflicts between domain name usage and trademark laws on a global basis without the need to litigate." (2)

US policy was driven not only by its positive assessment of global contractual approaches, but by its desire to avoid existing international institutions. US industry and policymakers shared a long-standing antipathy toward the ITU in particular. This was partly a legacy of the war over dominance of global data networking standards in the 1980s, and partly because US technology leadership and its often aggressive liberalism were typically blunted within one country-one vote forums such as the ITU. The United States was also leery of European-led efforts to create a new international treaty or charter for regulation of the Internet, fearing that it would open the door to the imposition of an ITU or UN-like bureaucracy. Thus, the 1998 Commerce Department white paper that served as the founding document for ICANN avoided direct government action while inviting international participation in governance. In recognizing ICANN, the United States delegated its authority to "a new, not-for-profit corporation formed by private sector Internet stakeholders to administer policy for the Internet name and address system." (3)

Prior to the creation of ICANN, the ITU had worked with the Internet Society and WIPO in an attempt to create their own privatized domain name administration regime. That effort, known as the Generic Top Level Domain Name Memorandum of Understanding" (gTLD-MoU), (4) was torpedoed when the US government, which controlled the central coordinating …