Milton Mueller, Associate Professor, Syracuse University School of Information Studies. firstname.lastname@example.org
"We are trying to
do brain surgery with baseball bats."
Ole Jacobson: "It's not brain surgery, it's an autopsy conducted on a living body."
"They all look the
same to me."
--a Japanese delegate, after seeing another IETF/IANA Net guru with bald head, gray hair, and long beard.
The following is a personal narrative of the 2nd IFWP meeting, held in Geneva July 24 and 25. The IFWP and participating organizations are making available many official and semi-official documents produced by this important event. This account provides people who werenât there with an interpretation that cannot be derived from a simple reading of documents and transcripts. Like all such interpretations, it reflects a single individual's perspective and biases. But sometimes the details and insights provided by such an account provide a more coherent understanding of what was going on.
The tone and structure of this meeting were more formal than the Reston event. Initially, attendance was larger, perhaps as much as 450 on the first day, due to spillover from INET'98. Attendance in the breakout sessions and on the second day, however, was about the same as Reston. The stakeholders represented were much broader geographically. The reason was the meeting's overlap with the Internet Society meeting (INET'98) held during the preceding three days. That conference brought in large contingents from Africa, Europe, and Asia, and connected the IFWP process to the IANA/IETF contingents that were conspicuously absent from the Reston meeting.
The issues that must be faced and resolved were posed more starkly in Geneva than in Reston, precisely because of this broader participation. Whereas in Reston it was enough simply to develop a spirit of cooperation and the faintest outlines of a consensus, in Geneva it became apparent that deals will have to be struck and the details of plans hammered out. This meeting was far more political than its predecessor was. Blocs were more apparent, deal-making between them the order of the day.
Here, in the author's opinion, is the most salient fact that emerged from the event. The old Internet rather offhandedly created a globally distributed collection of economic and political actors with a vested interest in maintaining, insofar as possible, the power pyramid devolving from IANA. These "status quo" interests are now fully participating in the IFWP process in order to protect and preserve their position. This includes, at the centre, the old IANA itself, which in the weeks leading up to Geneva took the lead by preparing its own road map for how the transition should take place. It also includes the regional numbering registries -- RIPE for Europe, AP-NIC for Asia, and ARIN for the US -- which have exclusive control of IP number blocks for their regions, and which, in preparation for the White Paper transition, created a plan for a "Global Address Registry Council." Current country code TLD registrars are also in this category. Having received a valuable territorial monopoly on domain name registration from the old IANA, the ccTLD holders are keen to protect their little stake in the Internet. Prior to IFWP Geneva, European and Asian ccTLD holders organized interest groups. During the IFWP sessions ccTLD holders argued for, among other things, special membership classes and guaranteed seats on the Neworg Board.
Of course, there is nothing intrinsically wrong with IANA preparing a draft proposal for the structure and by-laws of a "new IANA." Likewise, there is nothing illegal or immoral about the regional IP numbering registries or ccTLDs preparing proposals regarding their role in the transition. They are all legitimate stakeholders, and their interests are directly affected. We must, however, clearly identify these groups as a faction or set of factions, and understand that their viewpoint does not represent the Internet as a whole but is, rather, a fairly self-interested and narrow one. If the IFWP process is to be fair and effective, the viewpoints of these vested interests must be balanced against other viewpoints and compete fairly with them. And herein lies one of the central problems with the IFWP process. Because of their strategic position within the existing Internet administrative hierarchy, the status-quo factions can dominate the process. The new organizational framework has to somehow represent the interests of millions of users and suppliers who are not part of that old structure. Indeed, it is vital that the process represent what the Internet can become, not just what it is now.
Of course, there were other factions and interests present. Network Solutions Inc. (NSI), for example, sent a delegation of 7 or 8 people that forcefully represented the interests of the world's largest registrar/registry. But as a clearly identifiable commercial interest, one that is anything but popular among most netizens, there was little danger that NSI could dominate or co-opt the process. Representatives of the gTLD-MoU Policy Oversight Committee (POC) were also a highly visible, organized, and active group.
The danger of co-optation by status quo interests was manifested in Geneva on at least two separate occasions. It happened first in the opening plenary session, when the regional IP registries cleverly won the right to present their views in a privileged fashion. It happened again in the workshop on the formation of Councils devoted to numbering and protocols, where the regional number registries attempted to structure the Councils in ways that will secure their exclusive control over them.
The opening panel quickly displayed these tensions. The plenary session featured Ira Magaziner of the US Govt, Jon Postel of IANA, Christopher Wilkinson of the EU, Michael Schneider, a German lawyer representing European ISPs, and Dr. Tamar Frankel of Boston University.
A tired-looking Ira Magaziner spoke first, and announced that he would leave the meeting as soon as he finished speaking. His limited participation, he said, reflected the USG's concept of its proper role in the process: the Neworg should be formed by stakeholders, not by governments. Among the key points in his brief talk:
Magaziner concluded by saying that the people who want the Internet to be run by governments are waiting for this process to fail, possibly an indirect reference to the EU representative sitting near him at the podium. "Order and stability" have always been the rationale for their intervention, he said. The message: get it done or else.
The European Union's Christopher Wilkinson spoke next. Is the EU happy with the White Paper? Yes, he said, although one could feel the "buts" coming. Wilkinson said that he appreciated the efforts made by the US administration and welcomed the new process, but he chose to dwell upon "reservations" and "areas of continuing concern." Among those:
In general, Wilkinson's distinctly statist approach was in marked contrast to Magaziner's. Wilkinson referred to the DNS namespace as a "public resource to be managed as such" and emphasized that public sector and governmental user reps should be able to participate in the councils formed by the new organization. Addressing the DNS controversies, Wilkinson said that eligibility criteria for establishing new TLDs are "urgently required," and called for slow and progressive expansion of the namespace, including non-English language TLDs. Wilkinson's complete comments are available at http://www.ispo.cec.be/eif/dns/cwgeneva.html.
Jon Postel was next. He was very nervous and spoke for a short time in a strained, barely audible voice. He merely referred to his drafts of by-laws and structure and expressed the hope that the meetings will bring forward ideas to improve the drafts that he wrote. It was clear from this statement that he viewed his drafts not as one of many competing proposals being passed around, but as the basic agenda from which the transition would be defined. Postel attempted to separate two distinct problems:
Michael Schneider spoke next about the Brussels meeting. He noted that the Green Paper was seen by Europeans as an attempt to perpetuate US dominance of the Internet, but claimed that Wilkinson had convinced the USG not to take a US-centric approach. The White Paper was now acceptable. I will omit his summary of the Brussels consensus because it is available elsewhere. http://www.ispo.cec.be/eif/dns/conclusions.html
He then gave a detailed and thoughtful elaboration of newer consensus points that were emerging from the European side, mostly regarding structure and governance. The Europeans seem to have in mind a membership organization in which both the Board and the Councils are elected by members.
Tamar Frankel was supposed to discuss the consensus items developed at Reston, as a counterpart to Schneider's presentation. It is useful at this point to say a few words about Dr. Frankel's unusual role in this process. Frankel is not a veteran of the Internet policy wars but was thrust into the middle of the IFWP process shortly after the release of the White Paper. Originally drawn into the process due to her expertise in corporate governance, she has now become a member of the IFWP steering committee and the nominal presiding officer or figurehead at its public events. Her outsider status is the source of her strength; no one can accuse her of being partial or a member of any faction. She has a sharp mind and a delightful personality, and is sincerely and totally committed to developing consensus among the Internet's warring factions. But her limited historical knowledge of Internet politics and lack of familiarity with many substantive issues create risks, as the next development in the plenary quickly proved.
Frankel noted that the Reston meeting shifted attention away from the names of people who would sit on the Neworg Board, and more toward defining the details of the Board's charter, so that the Board's discretion is reduced. Once that is accomplished, agreement on who is qualified to serve on the Board doesn't matter so much. The objective of the IFWP process, therefore, is to provide more detailed guidelines based on the White Paper. The meeting in Reston, Frankel said, was a milestone event because Internet people not of like mind came together for the first time to focus on agreeing, not on winning. Looking at what has happened since, she finds a great deal of consensus. Frankel then stopped her speech and invited Pindar Wong to make a presentation, ostensibly as an example of the newly developing "consensus."
What happened next bordered on an abuse of the IFWP process. Pindar Wong is a key figure in the Asia-Pacific Internet Association (APIA) and AP-NIC, and was recently appointed to the gTLD-MOU's Policy Oversight Committee (POC). Wong and others were instrumental in forging plans for a "Global Address Registry Council" controlled by the existing registries. Wong then exploited his access to the IFWP steering committee and the innocence of Dr. Frankel to gain for this faction an opportunity to promote this proposal at the opening plenary session.
Wong launched into a propagandistic presentation complete with Powerpoint slides that attempted to sell the regionals' plans for a Global Address Council. The essential message was quite simple: IP Address allocation procedures are well established; regional registries are in charge of that process now and should remain so. They should also be guaranteed representatives on the Neworg Board. The final slide, which said only "WE ARE READY" was left up during the entire Q&A period.
Of course, this did not represent "consensus" among formerly conflicting parties, but the viewpoint of a very specific group within the process. It is neither surprising nor impressive that the three organizations that now hold monopoly control over IP address allocation can come to an agreement that they ought to remain in control. That is more like collusion than consensus. Whichever word one chooses, it exemplifies precisely the kind of activity that IFWP must move beyond if it is to succeed.
After the plenary we broke up into workshops, re-convening in the evening. My reporting of the workshops is somewhat spotty because I of course could only be in one place at one time.
On the first day (July 24) I spent the rest of my time in Workshop A, which was charged to develop a "profile of the entity" that could serve as a constitution or charter defining the scope and limits of its power. The Geneva workshop stuck to the basic framework agreed upon in Reston, but added some substantive elaborations and changes. Geneva moved the constitutional debate forward by taking on directly the issue of the direction of control - bottom up vs. top-down. In its specification of the Neworg Board's powers, the Geneva workshop sought to limit its power by requiring that IP number policies be approved through a "bottom-up process where entity councils make proposals that the board may accept or veto." That modification was proposed by IETF stalwarts, led in this workshop by Scott Bradner, but carried out throughout all panels. In general, the consensus was that decisions about technical policies must be approved by a relevant Council prior to being accepted or rejected by the Board, although the Board may propose specific items to be considered by the Councils.
The provision giving the Board the power to set policies and procedures regarding domain names did not so clearly favor the bottom-up paradigm, however. Indeed, it is difficult to describe the "consensus" regarding domain name powers in any coherent way. The Internet TLD remains a hornet's nest of controversy and difficult political decisions. Everyone accepts that the Board will have the power to delegate TLDs, but there was little agreement about how much control it will have to dictate standards and practices of any specific TLD. The workshop was not even able to reach a consensus about maintaining the ISO 3166 standard as the basis of country code TLDs.
Harvard professor Lawrence Lessig presided over the session in what I thought was a masterful performance. He was an active moderator who interrogated speakers about the implications of their comments and how they fit logically into the consensus items. He managed to do this without interposing his own views.
Accountability is the feature most lacking from the current IANA pyramid. Membership, therefore, is a crucial issue. Membership determines who is defined as a legitimate stakeholder in the Neworg and the rights that go with membership will be the primary mechanism for enforcing accountability. The issue of membership becomes even more important now that the bottom-up paradigm is gaining momentum. The bottom-up paradigm shifts responsibilities to the Councils. So who has a right to participate in, and run, the Councils?
Jon Postel's draft proposal for a "new IANA" structure and by-laws had received a great deal of criticism because it contained no provision for accountability or membership. NSI, on the other hand, was pushing strongly for the idea of a flat, open-to-the-public, membership organization. A proposal for a more restricted approach to membership put forward by Jim Dixon of the European ISP Association also was stimulating debate about what categories of membership or Board representation, if any, should exist (geographical, sectoral, etc.). In general, American participants tended to favor an open, individual membership with voting rights and direct elections to the Board. European and Asian participants wanted to limit membership to industrial and Internet-based stakeholders, and foster a less direct relationship between individuals and Board members.
So I spent the next morning in the Membership workshop. The previous day's workshop had been described to me by one participant as a "disaster" due to its failure to come to any meaningful decisions. The second day was not a disaster, but it was utterly inconclusive. The problem of membership "what it will be, who will be eligible, and what powers they will have" is not even close to being solved. For example, the workshop agreed that individuals could be members, but could not agree on whether they (as opposed to organizations) could vote. The consensus items developed in the meeting simply do not add up to a coherent system or philosophy of membership.
Workshop F proved that the Reston meeting provided an amazingly accurate definition of those minimal areas where a solid consensus about this divisive issue can be achieved. It is abundantly clear where we agree and where we disagree on this issue, and no amount of discussion is going to change anyone's mind. Indeed, the more the issue is debated, the more the interests of Internet users and stakeholders become differentiated from, and opposed to, the interests of large-scale trademark interests. Throughout Geneva, one sensed that even the POC and CORE interests were backing away from trademark interests because of the obstacle they present to the creation of new TLDs. At the INET conference, WIPO adopted a very low profile, in effect scaling back its dispute resolution plan to nothing more than a purely voluntary forum for private arbitration.
Thus, the six consensus points produced by Reston were examined and debated in great detail, but despite all the verbiage not much changed. This made for a boring workshop, but solid results.
Only one substantive change was made, and it represented a setback for trademark interests. The first consensus item from Reston called upon the Neworg to "gather and disseminate information" about domain name disputes involving cyber-squatting. Having participated in the formation of this resolution in Reston, I know that it was an attempt to find a middle ground between the trademark interests and their opponents. Perhaps, we reasoned, if we could come up with a clear enough definition of cyber-squatting and its characteristics, we could find a way to eliminate it that would not also threaten the interests of innocent registrars, registries, and Internet domain name holders.
This provision came under concerted attack from a variety of sources. In the end, it was stricken from the list of consensus items. A new consensus item, specifying that the Neworg should cooperate with TLD entities to form databases with up-to-date contact and registration information, was added. In fact, there was already agreement on this point in Reston, but the agreement was so obvious and tacit that it was never put onto the list. Notably, however, the Geneva workshop explicitly refused to specify that the contact information databases should be standardized.
Representatives of INTA and the European Motion Picture Association valiantly made the case for mandating uniformity in trademark policies and/or dispute resolution procedures across all TLDs. They failed. There was little support for the idea of uniformity, and Reston's consensus point #3 -- that the entity should encourage the development of "various" trademark dispute resolution mechanisms -- was upheld.
The only other modification was in consensus point #6, which defined a process for decision making about this problem for the Board. The complicated 6-stage process defined in Reston was canned in favor of a simple statement of the bottom-up paradigm: Councils will make recommendations to the Board, the Board will then have the authority to ratify or veto the recommendations.
I did not attend this Workshop but listened carefully to the presentation at the closing plenary session. The full report from Workshop D can be found at: http://www.geneva.ifwp.org/rptworkshopd.html.
This Workshop appears to have been completely dominated by what I have elsewhere referred to as the "status quo" faction; in this case, the existing regional address registries. The workshop report proposed that the IETF appoint the Internet Architecture Board as the Protocol Council and that the Address Council be initially composed of no one else but the regional address registries. Although there was some pressure within the workshop to open the Address Council up to other segments of the Internet community or Neworg members, this was strenuously opposed by the existing address registries. Both Councils would be insulated from direct control by the Neworg Board, which could only "ratify" policies suggested by the councils or "suggest" policies for the Council to consider.
When presented in the final plenary, this governance formula struck many participants as dangerous and unacceptable. No less than four speakers rose in the Q&A section to criticize it. Subsequent discussion on the IFWP listserver amplified these concerns. One of the most perceptive analyses came from Jim Dixon, of the EuroISPA:
"The problem is that the proposed structures, presented as just a continuation of the way things are done now, actually represent a major change. At this point IANA has a clear oversight function. It allocates address space to the RIRs and sets down clear policies on how that address space is to be managed. Although there are no legal sanctions involved, none of the RIRs would dare to break IANA's rules. The entire system runs on trust, and if they violated that trust they would lose all credibility.
In the proposed new structure the councils report to themselves; the role of the Board is minimised. Relationships of trust are replaced by legal relationships, relationships in which the councils have power but no responsibility and the Board has responsibility but little power. This is a fundamental change and not a healthy one."
The ideology of "self-governance" stands at the core of the status quo, IANA-led faction. They feel that if only the current mechanisms of Internet administration -- IANA, the regional address registries, and so on -- can be insulated from such distractions as law, politics, government regulation, and the profit motive, everything will be fine. Many of these people still feel that the U.S. NTIA proceeding was an unwarranted intrusion. Although they recognize that it is futile to ignore the White Paper process now, they would like to keep the same system going within the framework of the White Paper.
But the surrounding society just won't go away. Perhaps the most significant recent encroachment is an antitrust lawsuit against NSI and the US National Science Foundation (NSF) launched by Paul Garrin's name.space business. See http://www.pgmedia.net/law/.
Garrin is an innovative entrepreneur in New York City who is attempting to develop a registry system based on an entirely open name space. Garrin proposes an unlimited number of non-proprietary TLDs and nondiscriminatory access to the root. His antitrust suit challenges NSI's refusal to add new TLDs to the name space on competition policy grounds. It also points out the deleterious impact on free speech of arbitrary restrictions on the name space.
The name.space lawsuit was the object of a lot of discussion and concern at the IFWP meeting. During the conference news arrived that the NSF seemed to be doing a poor job of mounting a defense. People began to speculate on what a name.space victory would mean. It was interesting to observe people's reactions to the name.space lawsuit. NSI representatives, of course, tended toward apoplexy whenever the subject was raised. Jon Postel literally fled whenever Garrin, who was present for the IFWP meeting, approached him. Many participants from the US downplay its chances of success -- not because they feel the charges are without merit, but because they think that no US Judge understands the legal, technical and economic implications of opening up the root sufficiently to feel confident making a decision for the plaintiff. There seemed to be a whispering campaign to discredit Garrin's lawsuit as a conspiracy between NSI and some other, unspecified forces. A French delegate openly denounced the case as a "fake." The charge infuriated NSI counsel Philip Sbarboro, who not only has first-hand knowledge of NSI's legal expenses but will have to contend with treble damages if his client loses. If the Garrin lawsuit is a conspiracy, it's a hugely expensive and risky one for NSI.
Other interesting reactions: an ITU staff member claimed that a successful lawsuit would force Magaziner to turn the whole Internet reorganization over to the ITU. Wishful thinking? You be the judge. An Australian delegate made a more reasonable speculation that unilateral action to open the root by a US court would prompt a WTO proceeding. One could argue, however, that the nondiscriminatory access to the root advocated by name.space is precisely the kind of free trade in services that the WTO seeks to promote.
Even if it is not successful, the seriousness of the case and the lengths to which it has gone demonstrates that privately initiated litigation in strategic jurisdictions such as the US can play a vital role in shaping the Internet's institutional framework. Indeed, after observing the total lack of a substantive consensus in the Workshop on the authority of the proposed "Names Council," and after contemplating some of the private deals that were being floated among some of the contending parties over new gTLDs, I found myself hoping for a Garrin victory. A court ruling for nondiscriminatory access to the root and no artificial limits on the name space might generate some confusion and disrupt the IFWP process in the short term, but it would also cut the Gordian knot that has stalled the development of the name space for the past three years.
The Geneva meeting was an exhausting but exhilarating immersion in Internet politics. Still, fundamental questions about accountability, membership, and the future of the name space remain unanswered. One can only wonder what is going to happen in Singapore. I hope the IFWP Steering Committee becomes more sensitive for the need to maintain balance and fairness with respect to position and activities of various factions as we approach the September 30 deadline. A new IFWP meeting has been added for Latin America. The end game, which must pull it all together and hammer it into a coherent and acceptable proposal, will be very important. There is talk of Ottawa, Canada as a possible site for this.
Meetings in Summer 1998 which culminated with the creation of ICANN.