The History of Internet Governance

The History of Internet Governance

When the term “Internet Governance” was introduced in the 1980s it was used mainly to describe the specific type of technical management of the global core resources of the Internet: domain names, IP addresses, Internet protocols and the root server system.

The term “Governance” was used to draw a distinction with “Government”. While earlier technological innovations like the telegraph in the nineteenth century or radio broadcasting in the early twentieth century immediately prompted governmental regulation in the form of telecommunication and broadcasting laws, there were no comparable governmental activities when the Internet emerged. The necessary regulation was mainly technical by nature and done by the technicians, the providers and users of the Internet themselves.

Governance without Governments

The mainstream philosophy in these early days of the Internet among the Internet pioneers was that there is no need for the involvement of governments. Furthermore, many Internet experts rejected any role for governments in the emerging cyberspace. Dave Clark from the Laboratory of Computer Science at the Massachusetts Institute of Technology (MIT) set the tone in a speech to the Internet Engineering Task Force (IETF) in 1992, titled “A Cloudy Crystal Ball – Visions of the Future”. In his paper he formulated a principle which became the Leitmotiv for the global Internet community: "We do not believe in kings, presidents and voting. We believe in rough consensus, factual approach and running code.”[1]

Tim Berners-Lee, the inventor of the World Wide Web said later: “There is the idea that society can run without a hierarchical bureaucratic government being involved at every step, if only we can hit on the right set of rules for peer-peer interaction. So where design of the Internet and the Web is a search for a set of rules which will allow computers to work together in harmony, so our spiritual and social quest is for a set of rules which allow people to work together in harmony.”[2]

The most outspoken and radical concept came later from John Peter Barlow in his “Declaration of Cyber Independence” which he published in Davos in Switzerland on 8 February 1996.[3] In his declaration he described cyberspace as “the new home of mind” where governments are not welcome.

The fear was that as soon as governments started exercising control over the Internet, they would restrict rights and freedoms – in particular the right to freedom of expression and the right to privacy. It was also feared that they would introduce time-consuming and costly procedures which would reduce the speed of innovation on the Internet and block the creation of new Internet services and applications. The preservation of the end-to-end principle or the P2P communication model for the Internet was seen as a guarantee of the Net’s freedom.

Self-Regulation, private sector leadership and bottom-up policy development were the key elements of the proposed regulatory framework for the Internet. The understanding of “Internet Governance” was based on a concept of “governance without governments”.

The reason and justification for such a non-governmental approach came from the practical and successful experiences of the first 20 years of the Internet. The absence of specific governmental legislation was seen by many observers as one of the main reasons for the incredible success of the Internet.

The necessary technical regulation, mainly in the form of codes, standards and protocols, was discussed among the technicians in a bottom-up policy development process which led to a new type of “law”, known as a RFC (Request for Comment). Later Lawrence Lessig described Code as the “Law of Cyberspace” and analysed the pros and cons of such an approach. Lessig argued that “in real space we recognize, how laws regulate – through constitution, statutes and other legal codes. In cyberspace we must understand how code regulates – how the software and hardware that makes cyberspace what it is, regulate cyberspace as it is.” And he continued: “This code presents the greatest threat to liberal or libertarian ideals, as well as their greatest promise. We can build, or architect, or code cyberspace to protect values that we believe are fundamental, or we can build, or architect, or code cyberspace to allow those values to disappear. There is no middle ground. There is no choice that does not include some kind of building. Code is never found, it is only ever made, and only ever made by us.”[4]

Although Internet research and development was continuously financed by the US Government via its “Defence Advanced Research Project Agency” (DARPA), the administration’s interference in the day-to-day operations of the researchers and service providers, in particular with governmental regulatory activities, remained low. The role of the US Government was mainly funding the project and retaining ultimate oversight over the process.[5]

The Institutionalization of Internet Governance

An important milestone in the development of Internet self-regulation was the creation of the “Internet Configuration Control Board” (ICCB) in 1979, which was initiated by DARPA. The ICCB became the platform for collaboration of engineers and other groups involved in the development of the Internet at that time. In 1984 the ICCB was transformed into the “Internet Advisory Board”, later into the “Internet Activities Board” and in 1992 into the “Internet Architecture Board” (IAB). To this day the IAB oversees the activities of a number of Task Forces like the “Internet Engineering Task Force” (IETF), the main body for the standardization of Internet Protocols and host of the RFC Editor, and the “Internet Research Task Force” (IRTF) which also gradually emerged bottom-up in the 1980s.

In 1992 activists from the various Internet groups, in particular from the IETF, created the “Internet Society” (ISOC) as a not-for-profit educational organization. ISOC also became a platform for discussing political, legal, economic and social implications in the development of the Internet.

The individuals and groups concerned enjoyed a high degree of freedom and independence despite the fact that they were being funded by the US Department of Defence. It is also interesting to note that many of the young researchers and graduate students involved in research projects at US West Coast universities like UCLA, USC, Stanford, Berkeley and others, were politically influenced by the “cultural revolution” of the 1960s, criticism against “the establishment” and the Anti-Vietnam War movement. These groups of young people soon realized the potential of the Internet to explore alternative governance mechanisms. They soon started to form their own constituencies and created non-governmental communication and collaboration mechanisms where they developed innovative organizational political principles and procedures like flat networks instead of high hierarchies and bottom-up policy development processes instead of top-down decision-making.

The majority of the basic Internet specifications and regulations we know today were developed in such bottom-up discussion processes. Pioneers like Steve Crocker, Jon Postel and others invented the “Request for Comments” (RFC) process, the “Root Server System”, or the “Domain Name System” (DNS), with its underlying IP address numbering protocols, without any guidance from or consultation with governmental agencies.

These new forms of “governance” represented a rather different culture compared to the way telecommunication networks had been governed. One simple example is the different handling of the allocation of identifiers. Telephone identifiers as individual telephone numbers, including the relevant country and city codes, are heavily regulated both internationally (via the ITU) and nationally (via telecommunication laws). In contrast the DNS was managed without any governmental regulation. In fact, until the early 1990s it was managed by one man alone: Jon Postel from the Information Science Institute (ISI) at the University of South California (USC). He was also the man who allocated the blocks of IP addresses to the new private Regional Internet Registries (RIR), delegated the management of Top Level Domains (TLD), also for country code based TLDs, and controlled one of the root servers.

While internationally country codes (like codes for car identification or post traffic) are the subject of intergovernmental negotiations and are managed by intergovernmental organizations based on an international treaty, there was no similar mechanism for country codes in the Internet. Governments were not involved in either the creation or the delegation of ccTLDs.

Jon Postel used an existing list of the International Standardization Organization (ISO) and allocated two letter country codes to individual managers in 243 countries and territories listed in ISO 3166. In RFC 1591 Postel said that he “is not in the business of deciding what is and what is not a country. The selection of the ISO 3166 list as a basis for country code top-level domain names was made with the knowledge that ISO has a procedure for determining which entities should be and should not be on that list.” And he defined the role of a ccTLD manager as a “trustee for the delegated domain” who has “a duty to serve the community.” According to RFC 1591 “the designated manager is the trustee of the top-level domain for both the nation, in the case of a country code, and the global Internet community.”[6] Not one government objected to this process when the first zone files of ccTLDs were put to the Internet Root Server in the middle of the 1980s.

As the Internet continued to grow at an exceptional rate, in 1988 the US Government encouraged Jon Postel to introduce more stability and security to the established processes and practices and to institutionalize the functions he had thus far executed in managing Internet core resources. As a result the “Internet Assigned Numbers Authority” (IANA) – originally a one-man organization – was established at Postel’s Information Science Institute (ISI) in Marina Del Rey.

Following a recommendation by the Department of Commerce (DOC), the ISI entered into a contractual arrangement with the DOC which continued until 1998 when the Internet Corporation for Assigned Names and Numbers (ICANN) was finally established. When the US Department of Defence stopped funding via ARPANET in 1990, the US Government continued to provide financial support through the National Science Foundation (NSF) and shifted legal responsibility to the National Telecommunication and Information Administration (NTIA) of the US Department of Commerce (DOC).

Broadening the DNS: WWW, ISOC and IAHC

The environment for the development of the Internet and the management of Internet resources like root servers, IP addresses and domain names, changed dramatically when Tim Berners-Lee invented the World Wide Web at the CERN Institute in Geneva in 1990. Postel realized immediately that the new options on the Web would lead to a dramatic growth of Internet usage. While he was sure that the basic architecture of the Internet could accommodate all the expected growth, he concluded that the DNS needed further expansion. Consequently he investigated options for a more advanced management system for Internet core resources which went beyond a one-man institution and involved other emerging constituencies around the world.

His first idea was to use the “Internet Society” (ISOC), established in 1992, as an umbrella organization. In 1994 he proposed adding 150 new generic Top Level Domains (gTLDs) to the existing Domain Name System consisting of seven gTLDs[7] and 243 ccTLDs in 1994.

Postel’s initiative was not co-ordinated with the US Department of Commerce. Network Solutions Inc. (NSI), a private company based in Herndon/Virginia which managed .com, .net, and .org as well as the A Root Server, was rather angry about such an initiative. In 1992 NSI had been given a contract by the DOC to be the sole domain name registrar for the three gTLDs .com, .net and .org. Based on such a monopoly position NSI saw in the emerging domain name market a grandiose new business opportunity. Consequently, NSI opposed the Postel plan to introduce 150 competitive gTLDs at this early stage in the development of a global domain name market. NSI lobbied the US Congress and the DOC, which finally intervened with Postel’s plan and stopped the handover of the DNS management to ISOC and the introduction of 150 new gTLDs.

Postel’s frustration about this governmental intervention prompted him to look for other options. He approached the Geneva based International Telecommunication Union (ITU), which after its Plenipotentiary Conference in Kyoto in 1994 had started a reform process and had opened itself up to private sector members. Postel’s idea was to create a new form of public-private partnership for Internet Governance by bringing technical organizations, private sector institutions and intergovernmental organizations together, launching a bottom-up policy development process and creating a new form of oversight body for the management of some of the key Internet resources. Postel pushed for the establishment of an “Interim Ad Hoc Committee” (IAHC) which was formed in summer 1996.

The IAHC started drafting a text for a Memorandum of Understanding for new gTLDs. The members of the IAHC were ISOC and Postel’s IANA, the Internet Architecture Board (IAB), the International Trademark Association (INTA), the ITU and the World Intellectual Property Organisation (WIPO). By inviting WIPO and INTA, Postel was reacting to the growing concerns of the IP and trademark community in the US which was confronted with the new phenomenon of cybersquatting and the misuse of registered trademark names in the DNS. By inviting the two UN specialized agencies he also wanted to respond to the concerns of a growing number of governments about their future role in the management of the Internet.

The six members of the IAHC agreed on basic aims, principles, procedures and institutions after one year of negotiations. On 2 May 1997 they signed a Memorandum of Understanding (gTLD-MoU) in Geneva which was heralded by ITU Secretary-General Pekka Tarjanne as a turning-point in international law. According to the gTLD-MoU a so-called Policy Oversight Committee (POC) with representatives from the six organizations was the main decision-making body. The POC was made responsible for key elements in the management of Internet core resources including the licensing of new gTLDs registries and registrars. A Policy Advisory Committee (PAC) was to give other stakeholders an opportunity to become part of the process by providing advice to the POC.

Within the POC, the technical community with six representatives (from IANA, ISOC and IAB) was to have the formal majority over three members from governments (ITU and WIPO) and three from the private sector (INTA and the newly established Council of Registrars/CORE). The plan was to launch seven new gTLDs as soon as possible, to license registrars for domain name registration in the gTLD name space and to move the A Root Server from Herndon/Virginia to Lac Léman in Geneva.

Again the US Government, and in particular NSI, was not amused about Postel’s initiative and did not support such an approach. On the contrary, US Secretary of State, Madeleine Albright wrote a critical letter to ITU Secretary-General Pekka Tarjanne arguing that he had gone beyond his mandate by signing such a gTLD-MoU without any formal consultations with ITU Member States, including the US Government.

The Making of ICANN

Seven weeks after the signing of the IAHC gTLD-MoU in Geneva, the Clinton administration started an alternative process aiming to privatize the management of the DNS. Referring to the termination of the contract between the DOC and the ISI, the US Government published a Green Paper in July 1997 asking for proposals for the creation of a new private not-for-profit corporation (NewCo) to become the new global manager of the Internet core resources.

The European Union supported in principle the idea of privatizing the DNS. But it criticized the US centric approach of the Green Paper. In a rather critical comment about the Green Paper the European Commission wrote: “The European Union and its Member States would wish to emphasize our concern that the future management of the Internet should reflect the fact that it is already a global communication medium and the subject of valid international interests.”[8]

Ira Magaziner, US President Clinton’s Internet adviser and the main architect of what later became ICANN, replied in a hearing before the US Congress to the European criticism: “The purpose of the Commerce Department proposal is to improve the technical management of the DNS only. The Green Paper does not propose a monolithic Internet Governance system. Frankly we doubt that the Internet should be governed by a single body or plan.” Magaziner recognized that “the Internet has become an international medium for commerce, education and communication” and “has outgrown the legacy system of technical management”.[9] He accepted the idea of an “international representative body” and proposed that the composition of a board of directors of a NewCo should be balanced and represent the functional and geographic diversity of the Internet.[10] This later enabled the EU Commissioner Martin Bangemann to support the concept of privatization of the DNS.

The principles of stability, competition, bottom-up policy development and global representation emerged from the discussion of the Green Paper. Jon Postel again changed his plans and took active part in the debate which led to a “White Paper”, published in June 1998 by the US Department of Commerce.

The impending termination of the contract between the ISI and the DOC pushed the debate forward. The White Paper, which included the four above-mentioned principles, paved the way for the final creation of ICANN. In September 1998 Jon Postel presented a set of draft by-laws for NewCo called Internet Assigned Names and Numbers Corporation in a Hearing at the US Congress and was given the “green light” to move forward. He said in the Hearing: “We listened to everyone who wanted to offer comments or suggestions, and we then tried to turn those suggestions into actual documents. Group discussion is very valuable, group drafting less productive.” And he added: “This new organization will be unique in the world – a non-governmental organization with significant responsibilities for administering what is becoming an important global resource.”[11]

In November 1998 ICANN was formally established by incorporation under the “California Nonprofit Public Benefit Corporation Law for Charitable and Public Purposes”. At the same time ICANN entered into a new Memorandum of Understanding with the DOC. Unfortunately Jon Postel died just days before the creation of ICANN after heart surgery in November 1998.

ICANN was designed as a multi-stakeholder organization under private sector leadership. In its original by-laws the Board of Directors, the highest decision-making body, was to consist of nine representatives from the private sector and the technical community and nine representatives from the so-called At Large Membership (ALM), representing the Internet users and civil society. Governmental representatives were not eligible for the board. Instead the 190 governments of the UN Member States were invited to form a “Governmental Advisory Committee” (GAC) and to give advice to the board, if needed. The point was that according to ICANN by-laws, GAC advice was not legally binding for the ICANN Board.

ICANN’s First Two Years

The creation of ICANN made the IAHC gTLD-MoU obsolete. Formally the gTLD-MoU was tabled during the ITU Plenipotentiary Conference at Minneapolis in October 1998. But it was not adopted. On the contrary, the US Government lobbied for an ITU resolution in which the ITU Member States recognized the principle of “private sector leadership” for Internet Governance. The Clinton administration planned to terminate the MoU with ICANN after two years and to give ICANN full independence at the end of the year 2000.

ICANN started its work in spring 1999. It soon became clear that its agenda was much more complex than expected. Although ICANN attained quick results in some areas – in particular in opening up the market for domain name registration and developing a system for the resolution of domain name conflicts (Universal Dispute Resolution Policy/UDRP) – in other areas progress was slow.

The idea that Internet users should have half of the seats on the Board produced a lot of problems and confusion, particularly about how the nine ALM directors should be elected. A trial with a global online election of five regional ALM directors in summer 2000, in which nearly 150,000 Internet users participated, produced mixed results and called for further research and reconsideration.

Furthermore, the relationship between the ICANN Board and the managers of the ccTLD caused a lot of tension. The majority of ccTLD managers did not accept ICANN’s leading role and operated rather independently under the national jurisdiction of the respective country. They were only interested in an informal technical service arrangement with regard to the root zone file management of their ccTLD.

The introduction of new gTLDs also produced more conflicts than expected. After a call for proposals, where nearly 100 projects were presented, in December 2000 ICANN adopted seven new TLDs for a test phase (.info, .name, .biz, .coop, .museum, .pro, .aero). Additional problems arose, in particular with regard to the WHOIS database and internationalized domain names, and this all led to an increase in ICANN’s workload.

As the date for terminating the ICANN-DOC-MoU approached, it became clear that more “homework” was needed before ICANN could attain full independence. In October 2000, the Clinton administration extended the MoU for another year handing over the issue to the next US administration.

ICANN’s Reform

Former Vice President Al Gore, who was directly involved in the making of ICANN, lost the 2000 presidential election and the new President George W. Bush had a different agenda with regard to the Internet. While for the Clinton administration the Internet had high priority, for the Bush administration it was low priority. The Bush campaign was mainly financed by the old industrial giants, not by the Silicon Valley companies which showed more support for Al Gore. Furthermore the year 2000 witnessed the burst of the .com bubble and the collapse of the so-called new economy called for a more critical approach to the concepts of self-regulation and “governance without government”.

This was heightened after the terrorist attacks of 11 September 2001. The Bush administration redefined the Internet infrastructure as a “critical infrastructure” for US security and US economy and it called for a new more security-oriented approach to Internet Governance. ICANN, which had started partly as a project for “Cyberdemocracy” now became a project for “Cybersecurity”.

In December 2001, ICANN’s new CEO Stuart Lynn started a reform process. Within 12 months ICANN’s by-laws were rewritten. A new structure of the Board, of the main supporting organizations and of the advisory committees emerged. And the relationship between the ICANN Board and the Governmental Advisory Committee (GAC) was adjusted.

According to the new by-laws the ICANN Board is now obliged to give an explanation to the GAC if it rejects its advice. Furthermore in such a case the GAC can ask for “consultations”. If consultations fail, the ICANN Board is obliged to explain this failure to the global Internet community and governments reserve their right to act independently from ICANN’s decisions. Although such a procedure does not directly de jure introduce a governmental veto right, it can be interpreted de facto as such a right by substantially rebalancing the power in the relationship between the private sector in the ICANN Board and the governments in the GAC.

Another change affected the role of the At Large Membership. The new by-laws eliminated the nine At Large Directors and the option of direct elections and placed the Internet users in an “At Large Advisory Committee” (ALAC) which was given the right to send one non-voting director to the Board. A new Nominating Committee (NomCom) was created and given the mandate to select half of the Board members.

The Internet Governance Controversy during the Geneva Phase of WSIS

When ICANN’s reform process was successfully ended by the adoption of the new ICANN by-laws in Amsterdam in December 2002, the issue moved one level higher and became more of a political controversy within the process of the UN sponsored World Summit on the Information Society (WSIS). During the preparation for the first WSIS Summit in Geneva in December 2003, more and more governments started to look deeper into the political implications of the management of the Internet in general and its core resources in particular.

A substantial number of governments criticized ICANN for being under the control of the US Government and called for a broader involvement in decision-making with regard to Internet development. The Chinese Government, supported by a majority from developing countries, proposed discussing an International Internet Treaty and the formation of an Intergovernmental Internet Organization. Private sector leadership was good in the early days of the Internet when there had been no more than one million users. Now with one billion Internet users, the Chinese argued, the time was ripe for governmental leadership in the management of Internet resources.

The Internet Governance conflict overshadowed the final preparations for the Geneva Summit in December 2003. The controversy was further fuelled by the unclear definition of Internet Governance. Some groups reduced Internet Governance to the management of the technical Internet core resources; for others Internet Governance included all public policy issues related to the Internet, including eCommerce, cybercrime and freedom of expression.

The different definitions led to different conclusions. The supporters of the “narrow definition” argued in favour of a continuation of the role of ICANN and private sector leadership in the management of the technical core resources. The supporters of the “broad definition” argued in favour of an enhanced role of the ITU and the principle of governmental leadership.

The problem was – and still is – that when it comes to the Internet core resources it is not so easy to separate the political from the technical issues. Even purely technical questions like the allocation of IP numbers, the introduction of domain names or the management of root servers, have political, legal and economic implications and affect market developments and the security and stability of the Internet.

Until the end of the Geneva negotiations, the US Government, backed by the Europeans, continued to support the principle of private sector leadership based on a narrow definition. China and the Group of 77 called for governmental leadership based on the broad definition. While at the end of the day both groups agreed that all stakeholders – governments, private sector and civil society as well as intergovernmental and non-governmental organizations – have to play a certain role in Internet Governance, a consensus about these roles was not reachable.

The compromise was to ask the UN Secretary-General to establish a “Working Group on Internet Governance” (WGIG) and to give the group a mandate to elaborate a definition of Internet Governance, to identify the public policy issues related to Internet Governance and to specify the roles and responsibilities of the main stakeholder groups. Probably one of the most important agreements was the consensus over the composition of the WGIG. According to para. C6.13b of the Geneva Plan of Action the group should be set up “in an open and inclusive process that ensures a mechanism for the full and active participation of governments, the private sector and civil society from both developing and developed countries, involving relevant intergovernmental and international organisations and forums.”[12]

The Working Group on Internet Governance

UN Secretary-General Kofi Annan established the WGIG in November 2004. The WGIG had forty members. More than half of them represented non-governmental stakeholders from the private sector, civil society, the technical and the academic community.

WGIG presented its final report in July 2005. It proposed a broad definition of Internet Governance which included much more than just names and numbers. The report defines Internet Governance as “the development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.”[13] Furthermore it produced a list of 17 public policy issues related to Internet Governance and formulated specific roles and responsibilities for the different stakeholders.

WGIG concluded that the Internet should not be governed by a single entity but its management should be improved by better communication, co-ordination and co-operation among different organizations and stakeholder groups. WGIG recommended, inter alia, introducing a new high-level discussion space for Internet Governance issues by the creation of an “Internet Governance Forum” (IGF), which does not have any decision-making capacity, instead of a new UN Internet governmental organization. WGIG could not agree about the oversight function and the specific role of the US Government in issues like the authorization of TLD root zone files and the oversight over ICANN based on the MoU. In 2003 the ICANN-DOC MoU was extended until October 2006.

The WGIG recommendations became the basis for the final negotiations during the third meeting of the WSIS Preparatory Committee (PrepCom3) in September 2005 in Geneva.

Before the restart of the WSIS negotiations, the US Department of Commerce published a statement reiterating four basic principles for Internet Governance. In the statement of 30 June 2005, the US Government made it clear that it was not considering relinquishing its special role and responsibility. “The United States Government intends to preserve the security and stability of the Internet’s Domain Name and Addressing System (DNS). Given the Internet's importance to the world’s economy, it is essential that the underlying DNS of the Internet remains stable and secure.  As such, the United States is committed to taking no action that would have the potential to adversely impact the effective and efficient operation of the DNS and will therefore maintain its historic role in authorizing changes or modifications to the authoritative root zone file.”[14] In the same statement, the US Government also recognized sovereign governments’ interests with regard to their ccTLDs. Furthermore the DOC reconfirmed its full backing of ICANN’s role as the main technical organization for the management of the Internet core resources. And it supported a continuing dialogue on Internet Governance within and outside existing organizations.

While the main point in the US statement was certainly the reconfirmation of the oversight role, justified with the argument that such a role is needed to guarantee the stability and security of the Internet, the other principles had equal importance. The formal recognition of the national sovereignty of a government over the domain name space defined by its ccTLD was in particular of interest for the Government of the Peoples Republic of China and many governments in Third World countries. These governments feared that the present Internet management system would allow the US Government to interfere into their national Internet policies and harm Internet communication by blocking the publication of the ccTLD zone file in the Internet root. The assurance that the US Government does not intend to interfere with communication related to the ccTLD was an important message for developing countries and eased the negotiations when the diplomats came back to Geneva in September 2005.

During PrepCom3, the Chinese Government no longer insisted on the creation of an intergovernmental Internet oversight body. Brazil and India again argued in favour of an intergovernmental Internet Convention but they did not formally table a draft. The only concrete proposal for further development of the existing mechanism came from the European Union.

The European Union proposed at the end of PrepCom3 a “new co-operation model” based on the concept of a public-private partnership. The basic idea of the EU proposal was that the day-to-day operations – as executed by ICANN – should continue to be managed by the private sector. However, governments should play a more active role on the “level of principle”.

The US Government rejected the proposal with the argument that the Europeans did not explain in detail the borderline between the “level of principle” and the “day-to-day operations”. The US Government argued that a vague separation of responsibilities could lead to a silent mission creep by a new intergovernmental body which would end in the installation of a UN-type control mechanism over the Internet as a whole.

The US-EU controversy over the Internet moved to the highest level. US President George W. Bush raised the issue when the President of the European Commission, José Manuel Barroso when he visited Washington in October 2005. US Secretary Condoleezza Rice wrote a letter to the British Foreign Secretary Jack Straw, who had the rotating EU presidency in the second half of the year 2005, and argued against the establishment of a “new co-operation model” for Internet Governance. The debate became overheated when a number of Senators published warnings in the US Congress that they would reject any efforts towards a “UN take over of the Internet”.

Neither WGIG nor the EU proposed such a take over. UN Secretary-General Kofi Annan himself rejected such an ambition in an article for the Washington Post and declared that the UN does not plan to take over the Internet. The Europeans also made clear that it is not their intention to introduce an intergovernmental control mechanism over the Internet. Such declarations helped to cool down the heated controversy and to prepare for a compromise in the final negotiations before the Summit in Tunis in November 2005.

The Tunis Compromise

The final compromise was reached just hours before the opening of the Tunis Summit. At the end all parties could agree on a number of basic principles for Internet Governance, on the establishment of an Internet Governance Forum (IGF) and on the launch of a process for enhanced co-operation.

The principles for Internet Governance include such important precepts like the recognition of national sovereignty over the ccTLD domain name space and the involvement of all stakeholders – private sector, civil society and governments in their specific roles and responsibilities – in all forms of Internet Governance. Of special importance is the principle “that all governments should have an equal role and responsibility for international Internet Governance and for ensuring the stability, security and continuity of the Internet.”[15] This paragraph was seen as a political success for governments which had criticized the special role of the US Government, in particular in overseeing the Internet root and ICANN. On the other hand, it did not include any procedure for a gradual change of this historic role of the US Government.

Less controversial was the adoption of the resolution for the creation of the “Internet Governance Forum” (IGF). The IGF was seen as the substitute for the proposed new intergovernmental body. The important point of the IGF is that it is designed as a multi-stakeholder forum without any decision-making capacity. The expectation is that the high level discussion will produce important messages which will be taken into account when organizations with a decision-making mandate for specific issues prepare projects and treaties. Examples of these organizations are ICANN for domain names, IETF for standards, the ITU for infrastructure and UNESCO for multilingualism. The IGF was constituted for five years and will take place annually under the umbrella of the UN Secretary-General.

The agreement on the launch of a process towards “enhanced co-operation” disguised the fundamental dissent over the future of Internet oversight. The Tunis document does not offer any precise definition of what “enhanced co-operation” means. While the US Government interprets enhanced co-operation as nothing more than a more effective collaboration among existing organizations involved in Internet issues – from the ITU and WIPO to ICANN and IETF – other governments see this process as the beginning of a new organizational structure which will eventually lead to a “new co-operation model” as proposed by the European Union. However, the compromise formula allowed all parties to keep face and left the door open for future innovative developments.

Internet Governance in the Post Tunis Phase

In 2006 the Internet Governance debate continued in a less controversial climate. Some important steps had been taken to implement some of the Tunis decisions.

Most important was the substitution of the ICANN-DOC-MoU with a new “Joint Project Agreement” (JPA) between ICANN and the DOC. The JPA gives ICANN a little more independence from the US Government. ICANN is not obliged anymore to report periodically to the US Department of Commerce but has to report annually to the global community. Furthermore there is no more subordination, but ICANN is obliged to have “consultations” with the DOC on a regular basis. The JPA will terminate in October 2009 and it is expected that ICANN will be fully independent after this date. The EU Commissioner Viviane Reding welcomed the JPA, underlining the point that this new agreement is a step in the right direction of reduced governmental involvement in the day-to-day management of Internet resources.

ICANN itself has sped up its reform process in 2006 and 2007 by trying to position itself more as a global organization, inter alia by opening more regional offices and creating a network of 13 regional liaisons. Furthermore, ICANN improved its relationship with the ccTLDs by entering into formal or informal arrangements with key ccTLD managers. It enlarged the role of the At Large Membership via the conclusion of MoUs with emerging Regional At Large Organizations (RALOs) from Latin America, Africa, Asia and Europe. And it finalized policies for the introduction of new gTLDs, for internationalized domain names and the future management of the WHOIS database. Additionally the relationship between GAC and the ICANN Board was further improved and institutionalized via closer co-operation in working groups and task forces. However conflicts with the GAC, like the introduction of the .xxx TLD or the level of data protection in the WHOIS database, remain issues for further debate.

The first Internet Governance Forum (IGF) took place in November 2006 in Athens and was a great success. More than 1,500 experts – representing all stakeholder groups from developed and developing countries – discussed in six plenary sessions and more than 30 workshops on a high level key Internet issues like openness, diversity, access and security.

The IGF with its multi-stakeholder mechanism was seen as a real innovation in international politics. Although it was under the umbrella of the UN, the IGF did not follow UN procedures. There were no special name badges, reserved seats or special speaking rights for the individual stakeholder groups. Governmental and non-governmental experts discussed on equal footing. The decision not to draft a final document liberated such a discussion from the pressure to agree on certain issues at the end of the meeting. Such informality gave the IGF additional dynamics which also led to another political innovation: the creation of so-called “Dynamic Coalitions” on Internet issues like Spam, Cybersecurity, Privacy or Freedom of Expression by representatives from governments, the private sector and civil society on a voluntary basis.

The messages of the IGF were summarized in concluding remarks by the Chair and it remains to be seen how seriously these messages will be taken by the relevant organizations and institutions.

The IGF itself was prepared by a multi-stakeholder “IGF Advisory Group”, nominated by the UN Secretary-General. The IGF-AG worked under the chairmanship of Nitin Desai, a former Deputy Secretary-General of the United Nations who has already served as the Chairman of the Working Group on Internet Governance (WGIG).

Finally the process of enhanced co-operation has started in the form of informal consultations, mainly among governments themselves. It will be some time before the different parties are able to draft concrete ideas and proposals about how such co-operation could be implemented. The ITU Plenipotentiary Conference in Antalya/Turkey in November 2006, adopted, inter alia, a resolution which called the ITU Secretary-General to ask Member States and sector members about their approach to the process of enhanced co-operation. At the same time, the newly elected ITU Secretary-General Hamadoun Touré stated clearly that the ITU under his leadership has no intention “to govern the Internet”. In 2009 the ITU will host its own “World Telecommunication Policy Form” (WTPF) dealing with Internet issues.

Looking Towards Internet Governance in 2010

An important future milestone could be the year 2010. In 2010 the Joint Project Agreement (JPA) between ICANN and the US Government will have terminated. In 2010 the mandate of the Internet Governance Forum (IGF) comes to an end. And in 2010 the ITU has its next Plenipotentiary Conference in Mexico City.

It is too early to forecast what the environment of Internet Governance will be in the year 2010. Issues like internationalized domain names, alternative roots or net neutrality, cybercrime, eCommerce and individual human rights on the Internet will probably become more important than the authorization of the publication of root zone files. Yet whatever the future holds in store of a few things we can be certain. In the year 2010 there will be nearly two billion Internet users and there will never be an end to the debate on how the Internet should be globally managed.

[1] David D. Clark, “A Cloudy Crystal Ball for the Future”, Speech at IETF, 1992, <http://ietf20.isoc.org/videos/future_ietf_92.pdf>.

[2] Tim Berners-Lee, The World Wide Web and the “Web of Life” <http://www.w3.org/People/Berners-Lee/UU.html>.

[3] John Peter Barlow, “Declaration of Cyber Independence”, Davos, 8 February 1996: “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear. Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders.” <http://www.worldtrans.org/sov/cyberindependence.html>.

[4] Lawrence Lessig, Code and Other Laws of Cyberspace (Basic Books, 1999), p. 6.

[5] It is worth remembering that the Internet emerged as a special project within the “Advanced Research Project Agency” (ARPA). ARPA, like NASA, was established in 1958 by the Eisenhower administration to respond to the challenges of the first Soviet Sputnik which was launched on 4 October 1957. The “Sputnik Shock” had deep consequences for political and military strategic thinking in the United States as it was reflected, inter alia, by Henry Kissinger’s analysis in his landmark book Nuclear Weapons and Foreign Policy, published in 1958 when he was still a professor at Harvard University. Kissinger later became the National Security Adviser and the Secretary of State under US President Richard Nixon. Part of the research at ARPA, which was financed by the US Department of Defence, was a project which aimed to explore the possibility of a decentralized (military) communication network which would make it difficult for the Soviet nuclear Intercontinental Ballistic Missiles (ICBMs) to destroy it with one hit. As a result ARPANet emerged in 1968 as a device for load sharing among the large computers serving research facilities around the country. Its design specifications called for providing secure communications in the event of an outbreak of war, so that no centralized node would be vulnerable to destroying the entire network. The experiments in the 1960s ended successfully. In December 1969 four computers at different US universities were linked together and successfully managed to communicate messages. The option to link computers for communication quickly spread beyond the military sector. When more and more networks emerged, in 1974 two researchers – Vint Cerf and Bob Kahn – developed a protocol known as Transfer Control Protocol/Internet Protocol or TCP/IP. This meant that not only computers but also different networks could communicate with each other. The TCP/IP paved the way towards building a “network of networks” which finally became the “Internet”.

[6] Jon Postel, RFC 1591, March 1994, <http://www.isi.edu/in-notes/rfc1591.txt>.

[7] .com, .net, .org, for global use, .gov, .edu and .mil for use in the US and .int for intergovernmental organizations.

[8] Reply by the EU and its Member States to the US Green Paper on Internet Governance, Brussels, 20 March 1998. The EU called “to reach a balance of interests and responsibilities, so that the international character of the Internet is recognized with respect to the relevant jurisdictions around the world”.

[9] Ira Magaziner, Written Statement to a Hearing on Domain Name Issues before the Sub-Committee on Basic Research of the Committee of Science of the House of Representatives, Washington, 31 March 1998.

[10] In the Interim Board, which was formed in November 1998, there were five North Americans, three Europeans and two representatives from the Asia-Pacific region.

[11] Jon Postel, Testimony before the Sub Committee on Basic Research of the Committee on Science of the House of Representatives, Washington, 7 October 1998.

[12] WSIS Plan of Action, Geneva, 13 December 2006 at <www.wsis.org>.

[13] Final Report of the Working Group on Internet Governance, Geneva, July 2005, <http://www.wgig.org/docs/WGIGREPORT.doc>.

[14] US Principles on the Internet’s Domain Name and Addressing System, US Department of Commerce, Washington, 30 June 2005, <http://www.ntia.doc.gov/ntiahome/domainname/USDNSprinciples_06302005.htm>.

[15] See para. 68 of the Tunis Agenda for the Information Society.