After an unequivocal experience of the inefficiency of the subsisting system of Internet regulation, you are called upon to deliberate on a new Constitution for the Internet. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the INTERNET, the safety and the welfare of the parts of which it is composed, the fate of a universal network in many respects the most interesting phenomenon of our times …

Only a foreigner, it seems, may be forgiven for bending the first sentences of the Federalist Papers, a set of documents so dear to the political culture of a nation and doing so with no other excuse but to find a rhetorical re-entry into a somewhat ailing debate on Internet rule-making. But why did those setting the framework for this debate evoke these historically loaded documents in the first place? Why this reference to the political history of just one particular country at a moment when this country seems no longer to have the largest amount of Internet users? Why such a debate anyway, and why now – again? What should be the issues? And what could be the desired outcome?

The historic reference may have been chosen for the purely heuristic reason of eliciting responses to the political significance of this current moment by recalling a significant moment in the history of political thought. And the reference to the history of the United States of America may be justified because of the role this country has played in the genesis of the Internet. Some may even hold such a reference to be justified because of an intellectual climate which, they say, this country has provided (while others maintain it is still providing and yet others see it providing soon again) in which people from different cultural backgrounds could experience the limitations of their own prejudices and the opportunities of free exchange while at the same time being given a lingua franca facilitating their exchanges and leaving them free to maintain their identity— all this being experiences and associations which we still sense today whenever we use the Internet even if only for the most mundane purposes.

This somewhat lengthy attempt at justification may, of course, also be read as proof that the “American reference” in all things relating to the Internet should no longer be taken for granted. Even if one of the key organizations of Internet infrastructure, ICANN, is still operating on the basis of a contract with US authorities, the focus of Internet policy and rule-making has been shifting significantly. This is no longer a debate mainly by, among and about US Americans, exclusively within their set of cultural references. Furthermore, this is no longer a debate about the existence of dominance, and how to deal with dominance. This is a debate with global participants about the present and the future of global communication as such.

The Internet is the “space” where we all experience the profound moment between when we have spoken and when we are heard, between the moment we hear and the moment when we set out to answer. The Internet is the communicative experience of our time, it is, if we want to continue to use the metaphor of space, the Global Communication Space in which we are offered the opportunity to constitute our individual and collective identities – and all of us. We may stay with this metaphor of space, we may take a more functional approach and see the Internet as a communication tool, or, we may perceive it even as a Public Good, since its global reach gives it its special meaning.

However, it is precisely this globality which is at stake. The “American reference” is not so smoothly being replaced by a new higher “federalist” political reference to the Global. Rather what we see are multiple references, within multiple territorial boundaries— may they be geographical, political or boundaries of belief and culture— which have become increasingly rigid in the last decade. Those seeking to move in the global communication space experience collision, conflicts with habits and values and rules, set for them by what they had thought to be traditional agencies of power slowly losing their relevance. This experience of collision simultaneously meets with increasing doubts about the technical and organizational sustainability and scalability of the technical infrastructure of the Internet itself. A window of opportunity when it seemed politically possible to finally match global technical capabilities with the human need for communication seems to be closing, ironically at a moment when we have just come to understand our natural environment and the health of our bodies to be truly global issues.

Still this moment gives us two options: We can rely on the traditional way of constitution-building, drawing from our past experiences of how to construct national or regional political institutions, procedures and rules. We can discuss and eventually attempt to reset the powers of technical maintenance and scaling, the rules of content and behavior, the powers of exclusion and inclusion. We can look for new—and realign old— sources of legitimacy, and we can construct a new system of checks and balances for such powers. We might, however, be forced to realize that this is not about building just a new box in which we will eventually place and protect a more and more fragile Internet. While we set out to design such a box, the Internet is already being boxed in. While we may find new ways for making new rules, rule-making is happening all the time around us. Since its very beginnings the Internet has seen its communicative potentials domesticated and its potential reach contained.

The other option seems to be to intervene now in the existing political processes and governance structures whenever and wherever the global understanding of the Internet is at stake, defending our communication habitat, just as we are defending our natural habitat by intervening in traditional political processes. To arrive at an Internet living up to its global potential we may have to make direct use of all those institutions and processes which are already shaping the Internet.

We might still call this process constitution-building.

But within this option such a task is far more complex. It builds a constitution by intervening at all moments and on all levels in a multi-player, multi-issue and multi-fora environment. Such an approach, with all its decentralized activities, would still require its own legitimacy, its specific focus, as well as subtle organization and synchronization. Much of that might be generated simply from the interaction of the many, harnessing their intellectual and social potential. Also, new bodies might evolve creating new fora, free of at least some of the negative associations which we link with many current global institutions. Given the necessary determination, we could also rely on institutions and processes of traditional legitimacy, on our existing bodies of local, regional and global policy-making and insist on linking them with carriers of acquired legitimacy such as non-governmental organizations. The essential will be to focus – again similar to the environmental debate – on the common and express goal of maintaining and enhancing the Global Communication Space, its infrastructure and its accessibility.

Whatever option is taken, it can build on the experiences of such “Continental Congresses” as the ones in e.g.Marina del Rey, or Geneva, or Tunis, or Athens.

And it can take inventories from the environmental debates as long as we keep in mind that all our constitutional efforts are in the end about our current and future will to share and to partake in other peoples’ joys and sorrows in the most direct way currently possible over distances. This is about nothing less than the way in which we intend to deal with hate and violence—as individuals, communities, as societies—within a global framework, and what we are willing to offer, to share and to learn for this aim.

Herbert Burkert is Professor of Public Law, Information and Communication Law, and President of the Research Center for Information Law at the University of St. Gallen, Switzerland. He is also an International Fellow of the Information Society Project at Yale Law School and a Senior Research Fellow at the Fraunhofer Institute for Intelligent Analysis and Information Systems in St. Augustin, Germany. He has authored and edited numerous publications on information law, technology, and data protection.

The debate over Internet governance and the foundation of ICANN represented the Internet’s first “civil war” — but all sides lost.

The only thing bonding the fractious “Internet community” together in the talks that led to ICANN a decade ago this year was an interest in keeping government away. The technical community tried to retain control of their creation from commercial interests and governments which they feared would erect toll booths or checkpoints, but saw their power whittled away. Meanwhile, “users” — an ambiguous concept ranging from ordinary web surfers to major businesses that rely on the web — wanted more say, but won only symbolic crumbs. A handful of Internet entrepreneurs pushed to open the market for domain names, but only one part was liberalized (retail registration) while another was basically protected (wholesale registry services) and new top-level domains remains largely closed. Finally, governments wanted more say — and got it, though not as much as most would like.

This abridged history provides the context with which to consider Susan Crawford’s excellent essay. It raises troubling questions. ICANN fails to uphold the aims that were expected of it, she asserts; its “operation is not matching its design.” So was the model unworkable, or the way it was executed? Is private governance of a “critical” public resource such as the Internet even possible? Computer science deals in binary logic (everything is either 0 or 1); likewise Susan’s analysis admits little gray. The model was right, she says, the problem was the people who turned the institution to their own ends.

My view is more optimistic and less black and white. Has ICANN failed? Yes and no. Despite terrible errors and unnecessarily ugly actions, in large part ICANN has not failed. It has been a rough birth, but the institution lives and policies are established, albeit far more slowly and erratically than they should. Yes, ICANN hardly upholds its initial aims — but institutions are forced to change with their environment. Were the same standard applied to American democracy, the Great Experiment might have been declared a failure at the advent of Hamilton’s central bank.

So is the problem the model or the way it is executed? Both, perhaps. The model is right, but is faulty (it is inherently cumbersome, conservative and lacks sufficient oversight). At the same time, the execution has been uneven, and the low points have been quite low (ICANN imposed too much centralization too quickly, its board was passive and it occasionally short-circuited its own processes, among other things). Susan identifies three areas where ICANN was designed to act: setting consensus-based policies, creating new top-level domains and keeping governments at bay. Mapped onto three specific issues, ICANN’s operations have been found wanting: the privacy of domain name registrations, creating new internet domains, and government influence over “international” domains that use scripts other than the Roman alphabet.

A bit of history is useful to understand why ICANN failed to live up to its expectations in these ways. The model ICANN chose was based on what it replaced: the “rough consensus” of the Internet engineering community — yet formalized as befits a non-profit corporation, but not so formal as to be stultifying like an intergovernmental organization. It is true that today it is largely a fiction. The inability to enact basic privacy protections on domain registrations or create new domains underscores this. (Susan’s third plank of ICANN’s model, that the US “would act as a good steward for the rest of the world” slightly misstates the issue: at the time the US planned to devolve its role altogether.)

This flows naturally to Susan’s second question: whether critical resources can be handled by private institutions? The uncomfortable conclusion for the Internet community, but the most responsible one, may be: not completely. Again, an answer that falls outside the binary extremes of yes or no. Is it not in the nature of any “critical” resource that some degree of governmental oversight or control is essential — or at least, considered to be essential — to ensure that the public interest is protected? Why should we expect any less from the Internet?

Why indeed? To answer this question, it is necessary again to recall the situation when ICANN was born. The year 1998 was when the Internet economy took off in full force. There was a widespread feeling that governmental control over the nascent medium might choke it. Moreover, the person overseeing Internet governance in the Clinton administration was Ira Magaziner, who had been previously blasted by Congressional Republicans for trying to “socialize” America’s healthcare system; he needed to avoid seeming too governmental at all costs. And there was a view that just as the Internet posed new challenges to businesses and governments, that it therefore required new approaches in the way in which it was regulated.

Thus ICANN’s self-regulatory model was a both a victor and a victim of its times. It was specifically established to handle tasks that in an earlier era were done by intergovernmental organizations. Yet it was only a matter of time before governments would want to reassert themselves and question ICANN’s responsibilities vis-à-vis their own. In fact, ICANN was established with little input from other countries. Other than the EU, which was on board, if the US administration talked to other countries, it was to mid-level telecoms officials who favored deregulation and liberalization, to which ICANN’s creation seemed in line. The higher-level foreign diplomats either didn’t know about it, couldn’t understand it, or didn’t care — until later.

Now that the Internet is clearly a mainstream medium, governments want a bigger seat at the table. They are a class of stakeholder that the original ICANN model did too little to satisfy since they were unaware of ICANN’s importance at the time. And much of ICANN’s reforms in the past decade has been aimed at remedying this deficiency.

Why was the model created as it was; why so little global buy-in? It is important to recall that ICANN was meant as a ceasefire, not a peace treaty. And the negotiations took place under a merciless stopwatch: the agreement between the US government and Network Solutions Inc. (NSI), the domain name register for .com, .net and .org, was poised to expire and there was no institutional arrangement to take its place. So the design was rushed — and was never meant to be definitive. On top of this, the white-bearded (and silver pony-tailed) professor who formerly ran it all, Jon Postel, passed away on the eve of ICANN’s creation. So ICANN’s staff lacked the fatherly oversight that was always presumed would exist — and hence its conduct was initially poor.

The crux of the problem, Susan explains, is that the ICANN model “underestimated the tendency of people to turn institutions to their own ends.” But we can sympathize with how that happened. Here’s the hidden history: In looking for an initial board, there was a debate among insiders — basically, the technical community that ran the system and US government officials who were reforming it — over whether it should comprise people of unassailably high stature (to ward off NSI, which played dirty) or people with deep Internet knowledge (to ward off the loudly critical domain-name entrepreneurs). It was decided that NSI — rich, powerful and organized — represented more of a threat to the new entity than the Internet-community loudmouths.

Besides, if the Internet were indeed entering a phase of mainstream adoption as testified by the institutionalization of Dr. Postel’s system, then it only made sense that leaders from wider society than just the technical community serve on the board, the thinking went. So the first directors included the president of Radcliff College, an American telecoms CEO and a retired EU official — people unscarred by the domain-name wars, but also clueless as to its history (with the notable exception of its chairman, Esther Dyson who is a technology expert).

In essence, ICANN took people who knew law and politics and applied it to the Internet (with all the misfortune that created), rather than take people who knew the Internet and could carefully apply it to law and politics. They were not so much turning ICANN to their “own ends” as simply deferring to the mechanisms with which they were most familiar. The result has been two-fold: the shortcomings that Susan so aptly describes, and the evolution of a new institution that albeit imperfect, is nevertheless underway.

Ultimately, I am not sure I agree with the Susan’s premise and that of the Publius Project, that there is a singular “constitutional moment” or “moments” of cyberspace, or of Internet governance specifically. There may be many small, fleeting legal milestones — but the very multitude seems to argue against the idea of a central powershift (perhaps in the same way as the network itself is fluid and decentralized, not monolithic or prone to the primacy of singular events).

Indeed, the very concept of a constitutional moment is a strong part of the American experience of governance, but it is also unique to it. It does not always apply well in other contexts and traditions. For Internet governance, the British approach of “muddling through” might be more fitting. More than 700 years since the Magna Carta, there is still no constitution per se. Now that’s procrastination. God save the queen!

Kenneth Neil Cukier is a business writer at The Economist. He has covered Internet governance since 1996, based in Paris, London and Hong Kong. In 2002-04 he was a research fellow at Harvard’s Kennedy School of Government. He is currently based in Tokyo for the newspaper. Some of his writings on Internet governance are online at: www.cukier.com

The Internet Corporation for Assigned Names and Numbers, or ICANN, coordinates name and number identifiers for the Internet. In a nutshell, ICANN coordinates actors who make sure that there is only one .com in the list of top level domains (like .com, .net, .org, and .edu) to which most Internet access providers around the world refer. ICANN also makes sure that these top level domains are linked to the “right” Internet Protocol addresses of the machines that have information about second-level domains underneath them (like google.com). It’s also responsible for coordinating the allocation of IP addresses, although the Regional Internet Registries do the work. It has contracts with the registries and registrars who provide, respectively, wholesale and retail services in connection with registering domain names. (It has looser relationships with the country-code top level domains like .de and .fr.) ICANN’s source of contractual authority comes from its status as a provider of services to the U.S. Department of Commerce.

And that’s it. Names and numbers; very simple; and it used to be that just one man with a long white beard named Jon Postel did this work on his own. Now, as of mid-2008, ICANN has a US$61 million budget and more than 100 employees.

As one of very few structures on the landscape of internet governance, ICANN gets both more and less attention than it deserves. At ICANN’s founding, amidst a swirl of rumors and complicated myths (many of which were probably true), many people expressed concern about ICANN’s power to act as a chokepoint. The internet is just a logical architecture, not a network with a manager, but ICANN’s ability to condition registration or use of a domain name or number on compliance with particular content-related (or law-enforcement-related) rules provided a place for policing that seemed risky. Then, after a few years of articles about ICANN, U.S. scholarly interest in ICANN died down; indeed, writing about ICANN became a kind of career-poison. “Who cares about domain names?” became the refrain. “People use search engines to find online sources, so names don’t matter any more.” It is also extremely difficult to follow what ICANN is up to, because much of the work of ICANN happens at week-long meetings (three per year) held in always-different places around the world. Although ICANN’s web site is much better than it used to be, its complicated structure and insider’s jargon can be off-putting.

This year, 2008, is a constitutional moment for ICANN, and I suggest to you that ICANN is now getting less attention than it deserves.

ICANN is often pointed to as a model of private governance for internet resources. First, it adopts “consensus policies” that bind the private actors that provide domain name registration services, and the idea is that these policies are actually formed by consensus of relevant internet stakeholders rather than being crammed down by the Board. Second, it is supposed to open up new top level domains to encourage competition with .com, which gained an enormous advantage in the early years of domain name registrations. And third, it was designed to keep governments at bay. The idea was that the U.S. government would act as a good steward for the rest of the world, so that no government would be able to carry out its content-related desires by using the domain name system as a chokepoint. Kenn Cukier is right that the stated plan of the U.S. government at the time of ICANN’s founding ten years ago was that ICANN would eventually become a fully-private organization; as of mid-2008, it is not clear that this plan will actually be carried out in the near future.

I am personally concerned that ICANN’s actual operation is not matching its design in all three of these areas. This prompts a question: was the model unworkable, or has its execution not had adequate oversight? And a second question emerges: Is private governance of things that people think are “critical internet resources” possible?

First, on the “consensus policy” point. Right now, as a condition of registering a domain name individuals have to make public their address and other contact information. This seems like a lure for spammers and an affront to personal privacy, and there is no worldwide consensus in favor of retaining this policy. But because intellectual property interests and law enforcement authorities would like to keep this database public, and because the retention of such a public database is the status quo, it has been extremely difficult to change this policy. The idea behind the consensus policy regime was that ICANN would be a forum for the creation of those very few global rules that were necessary for stability and security of the internet, and everything else would be left to local control. Yet here we are, with a special-interest rule that imposes costs on people around the world and is seemingly impossible to change.

Second, ICANN does not have a very good track record with respect to opening new top level domains, and it is on the verge of adopting a thickly-restrictive, full-of-compromises regime for this process going forward. It is almost as if ICANN would like to perform desired censorship for anyone with an objection to a proposed string – to keep those objecting from being upset with ICANN. I find this difficult to understand; no one is forced to look at the list of top level domains to which network access providers point.

Third, ICANN can no longer be said to be keeping governments at bay. Both the U.S. government and other governments exert a great deal of power within ICANN through the Governmental Advisory Committee, a sort of mini non-treaty organization of governments that must be consulted in detail before ICANN can do much of anything. The most recent step down this path is an apparent agreement to short-circuit ICANN’s policy processes in favor of governments who would like a “fast track” for adoption of internationalized (non-ascii) top level domains that they would control. This is a superficial summary of a long story, but the reality remains: governments have a great deal of say over ICANN’s processes.

So: was the model unworkable? Should centralized resources of internet names and addresses become subject to government control, because this is the kind of thing for which governments are traditionally responsible? Was the private model subject to such non-democratic pressure by large companies that it could never have worked in the first place? Or has the implementation of the ICANN model been the problem?

Let me try to answer the questions I’ve posed. Is the theory that rules imposed globally should be rare and supported by almost everyone wrong? No. Is the mechanism of using contracts to ensure enforcement on a global basis wrong? No. Is the theory that non-governmental parties will be better at developing dynamic policies that reflect knowledge of the technology wrong? No. Is the theory that opening up more competition for top level domains would be good wrong? No. So what’s the problem?

The creators of the ICANN model may have underestimated both the tendency of people to turn institutions to their own ends and the tendency of governments to ensure that their needs are addressed. ICANN the institution may have had the right theories at its core, but it needed to be peopled with those who cared about preserving the free flow of information online and were willing to put energy behind a private model. Kenn Cukier is right that ICANN is continuing to muddle along; its budget continues to grow, and its meetings are well-attended. But what is it accomplishing, and how are its activities undermining the “avoid chokepoints” model? There are great challenges ahead. At any rate, before the ICANN experiment is pointed to as a model of private internet coordination it should be examined carefully. Its actions this year are likely to be revelatory.

Susan Crawford is currently a Visiting Professor of Law at Yale Law School, teaching internet law and communications law. She is a member of the board of directors of ICANN and is the founder of OneWebDay, a global Earth Day for the internet that takes place each Sept. 22. She is the author of the Susan Crawford blog.