The Debate Over Internet Governance: Eric Menge

A: Well I guess, before I begin, I probably should caution that any statements of mine are not necessarily binding on the Office of Advocacy of the Small Business Administration (SBA). For that you have go to talk to Jere Glover, who is the Chief Advocate and who unfortunately is not in at the moment.

Greatest promise of Internet? Unprecedented adaptability. It is amazing what you can do with it. How it can be used, this is a tool that is so incredibly adaptable. It can be changed, it can be modified, it can be used for a dozen different things and depending upon what business you’re in, and we have small businesses in all different types of industries, it’s really just a…it has amazing effects.

Q: What’s the best way to realize that promise? Do we need to in any way guide the development of the technology?

A: It has been our experience through watching various industries grow that if you get out of the way, it works a whole lot better. For example, there are only a limited number of brains in the government because there is only a limited number of people. They can’t think of everything. Therefore, if you let them sit and…for example if you relied upon us at the SBA to come up with all the ways a product could be used, we would miss a lot of things since there are only so many of us. Where you actually get the opportunity for innovation is people coming up with new ideas and being able to make use of those ideas with a minimum of burden and regulation. All things being equal, unless there is a specific public policy goal that needs to be achieved, the SBA and the Office of Advocacy have historically come down on the side that as little regulation as possible is best to encourage a technology and to encourage an industry.

THE ROLE OF THE SMALL BUSINESS ADMINISTRATION

Q: Background on how the SBA got involved in all of this. Why is this the natural place in the government for this kind of activity to come under? And how it is you personally became involved in this?

A: Why is the SBA interested in electronic commerce? First of all, electronic commerce… essentially the internet and computers are the creation of small businesses and the federal government. It was through the ARPA-Net program and its prodigy that led to the internet. And, of course, all of the original computer companies, like Apple and Microsoft and Netscape and AOL, all started as small companies. We have very few companies that actually were big and then switched over to doing internet or computers. The exception might be IBM and they did such a wonderful job of that...which is why we all own IBM machines or actually we all own IBM clones for a reason. So small businesses always had a crucial role to play in technology from the very beginning. Small businesses tend to be the innovators. We have economic research that shows that the majority of all innovations – patents – in this country are registered by small businesses. Small businesses are willing to take the gamble and go into new fields.

A: Now our role at the Office of Advocacy is to act as a voice for small businesses before the federal government. What Congress found when it created the Office of Advocacy was that small businesses often times just did not have the resources, the energy or the connections to monitor what was going on in the federal government. They would see all the large companies. Take, for example, telecommunications, which is where I do a lot work. They would see AT&T, BellSouth, BellAtlantic, all these companies, all the time. They would very rarely see Lufkin Congrow [?] or the Rockhill Village ISP. These companies often needed an extra voice to represent their interests because I’ve often heard, actually I’ve heard another small business owner say that think about a small business – you can work any twenty hours of the day you want. And that’s pretty much true. These people are so busy trying to make a go at things that they don’t have the attorneys or the time to monitor. That’s where we come in. With information technology holding such promise and opportunity for small businesses, we believed it was only natural – in fact, it was part of our statutory duty as a voice for small businesses – to get involved in the subject as early as and as strongly as possible.

PERSONAL BACKGROUND IN INTERNET ISSUES

Q: What is your personal background in IT?

A: The Office of Advocacy has had a number of telecom advocates who were very skilled and knowledge about the telecommunications background and regulatory system here in this country. I kind of stepped into that just at the time as information technology was going through the roof. As a consequence, since I had a little bit of a background mostly through my own hobby and personal interest in computers and the internet, I was essentially dubbed, ‘OK, Eric, you know telecommunications , well you also get the e-commerce stuff too.’ Do I have any technical training? No, which is why I am on the policy side of it. I use the technology a great deal. I’ve built my own computer for about 10 years now out of pieces. I’ve done HTML coding, dealt with all different types of programs over the internet, so I have a good knowledge of how the technology can be used. But I do rely upon the technical experts to tell me all the background – how things work, what IP version 6 will be able to do as opposed to IP 4, which is what I believe we are using.

Q: How long have you been involved in this?

A: The Office of Advocacy reviewed the White Paper just to see if it had any small business impact. Originally we signed off as no, not having a small business impact because we were assuming it would stay as a very limited and technical background, with a scope very close to what IANA was doing. However we learned following that in February 1998 that a lot of this might become a lot more, that they were going to start adopting a dispute resolution procedure. And this was at the WIPO stage, when it was being considered by WIPO. We caught wind of that and the implications that would have on this entire developing technology and the millions of small businesses that have registered domain names. It was at that stage we tried to represent the small businesses.

GOVERNANCE: Defining Governance

Q: How would you define the term governance?

A: Governance…

Q: When someone says “Internet governance” and that ICANN is about internet governance, what does that mean to you?

A: Governance essentially is the … I would classify it or define it as the action of overseeing and managing and having final decision making power over a particular activity.

Q: Under that definition, would ICANN be a form of governance?

A: Yes. Because it has final authority.

GOVERNANCE: Is Formal Governance Necessary?

Q: Is a formal governance structure necessary for the internet? I know you talked about minimal regulation, allowing the internet to reach its full potential without overly regulating it. I was wondering if you thought that as a formal governance structure whether or not ICANN is necessary?

A: Well, I guess my first question is…I have a question for you before I can answer that one. What do you consider formal. Do you consider ICANN formal?

ICANN: Is ICANN Governance?

Q: I don’t want to turn the question back on you but I guess I’d like to work with your definitions. Would you consider ICANN a formal governance structure?

A: I would consider it a hybrid. I would consider a formal internet governance structure to be a treaty based organization, kind of like WIPO. That would essentially would have all of the countries agree to it, it would have a charter, it would have a structure. That to me would be a true formal internet governance structure. ICANN is very interesting creature. It was created, it really looked like, out of a series of misfires, that they eventually settled on something they thought would work. And it has done a remarkably good job from when it started and considering the number of parties that it had and considering its origins.

Whether or not we need a formal or even a hybrid internet structure, well, we’re moving into a new era of the internet of web based communication. There’s going to be a very active commerce, in fact commerce might be one of the prime uses of the internet, whether it be the world wide web or some other form of the internet. Any place where you have commerce and a lot of money changing hands, you’re going to have to have a means of resolving disputes and you’re going to have to have a traffic cop as it were. Especially if you have that amount of money flowing through, I really suspect that the national governments will want to have some control, not only for taxes and revenue gathering but also for sovereignty issues. From the moment you allowed money onto the web, some form of formal internet governance was probably going to be necessary, if not inevitable.

Q: Is ICANN a good first step towards structuring that formal governance?

A: I would have preferred a different means of creating this hybrid. However, that is kind of water under the bridge. At this point in time, we have what we have. And I believe it is a bit too late to go back.

Q: What different means did you have in mind?

A: Well, it would have…instead of soliciting bids, essentially soliciting bids for different corporations to essentially accept the duties of IANA and also to take away and accept the duties of the Department of Commerce, I think a little more formal creation process would have been helpful, particularly in laying out the charter, the by-laws, and the initial composition of the board. As I said, at this point in time I am not particularly concerned with that because that’s the past and I can’t do a whole lot about the past. I can do a lot more about the future. And that’s what I am looking at.

ICANN: Issues That ICANN Must Resolve

Q: What is it that you’d like to do?

A: I think there are three main components that really need to be put into any sort of internet governance. One would be representation. Next would be a clearly defined duty, a clearly defined scope of authority, that the term I am looking for. And three some sort of review mechanism to keep a check.

Q: Can you speak a little more to each of those components, both in terms of what you see as lacking in the current ICANN structure and what it is you’d like to see develop on these three issues?

A: All three of these issues had a…well, ICANN was suffering from a major problem - lack of funding. And that hit them from the very start. They had to create a large global scale organization with little staff, no money and a lot of disadvantages. Regarding representation, they are slowly moving in that direction. Hopefully, the at-large membership will help a lot in creating more representation and getting the board to be fully elected. We believe that an elected board is absolutely necessary to have accountability. This is, of course, leads us into the second part which is procedure. Whenever you’re dealing with something that is not exactly a government entity but a non-profit corporation, the ability of everyone to have a say, to have input is crucial. That’s where procedure comes in. That way no one can walk away saying it was unfair, I didn’t have a chance to have my say, they were bought and sold by big companies, or they’re only supporting the United States over the rest of the world. That’s where procedure is important. Finally, the third party is important because they act as an outside check. The United States government is built upon checks and balances, which of course was drawn all from European philosophers at the time the Constitution was written, particularly John Locke who believed that no government could ever be trusted. What you could always trust was that government would look out for its own self-interest. So if you put up different branches of the government that were opposed to each other, they would check each other. The third party would have some of that. It would act as the judiciary, our Supreme Court.

ICANN: ICANN’s Scope of Authority

Q: At present, do you see any limits on ICANN’s scope of authority without that kind of third party check?

A: Without the third party check….they are adopting, if I remember correctly, I believe they are going to discuss this at the Cairo meeting – third party independent review. I think that needs to be given a good bit of teeth, some strength, otherwise it will be nothing more than an annoying buzzing around the ear. Without it, I would think there would be a danger, not saying with this board or even the next one, but at some point when you have this amount of money –WOO!. This amount of money and this amount of pressure on that board is going to be unbelievable.

ICANN: Fear of Capture

Q: How real do you think the fears are that many people have voiced about the corporate capture of ICANN and the decisions it takes?

A: That is always a fear, not just for ICANN but it was one of the reasons why the SBA’s Office of Advocacy was created. The federal agencies often times were not listening to the little guys, they just saw the big guys all the time. I would refer back to the procedure, which is the ability to represent and have your say as crucially important to prevent this capture idea. Also if you have the scope of authority very limited and they have to justify it to the independent board – any of their actions as to why it is within their scope of authority – that would also cut down on any danger of corporate authority.

CONSENSUS: Consensus

Q: In your opinion, does ICANN’s reliance on the decision making process of rough consensus exacerbate any of these things you’ve been talking about?

A: No, I don’t believe so. Consensus has other difficulties, mostly how do you know when you get there. It’s not like you can just take a vote. Because a lot of times, not everyone will be happy with a consensus based decision but what is crucial is that most everyone will accept it. That’s the sort of thing they have to work toward. Do they get to what is right for the internet, what is right for the innovation of the technology and to what will give the most benefit to the most people in the United States, where there are the most internet users but also around the world. Trying to find consensus is going to be very tricky, but I believe it can be done but I don’t believe defining things by consensus will undermine the other issues I pointed out.

CONSENSUS: Defining Consensus

Q: How would you define consensus as you’ve seen it operating in ICANN’s decision making? What does it look like to you that they are using?

A: I believe they are using a tacit agreement through all the major parties that what is being decided is acceptable. And [….] they are in a place where they don’t just have two sides fighting against each other but they have dozens. Trying to get everyone to agree on something is quite a bit of magic. Of course, there are a lot of people whose voices are not heard in ICANN, just because it is kind of arcane, it’s kind of obscure, and people don’t understand what kind of power and influence it can have. Also there are some parties that will never be mollified, no matter how hard you try they will never agree to any sort of compromise. As a consequence that is going to undermine the ability to reach consensus but sometimes in the interest of continuing to innovate the technology and the continued stability of the internet you have to move forward, irregardless. However, that’s where the third party review comes in.

ICANN: The Worst ICANN Can Do

Q: Looking at the present course ICANN is on, what do you think the greatest harm it poses is, should some of the things you’ve talked about not happen? What’s the greatest damage ICANN can do?

A: Let the imagination run wild….If everything goes wrong, nothing goes right, we could end up possibly with a structure akin to the International Olympic Committee where you have essentially directors with very minimal salaries but receive million dollar perks from all sorts of corporations, who will essentially have bought and sold the internet, and will be purposefully using it as a tool for the rich and the global, and will be purposefully suppressing any new entrants from coming along and using the spectrum to innovate it, to come out with new products and services because that would threaten their market dominance. That is the worst case scenario. Not only would we have economic stagnation, we’d also have technological stagnation.

THE FUTURE

Q: Looking forward ten years or so where do you think ICANN will be?

A: Where their headquarters will be located?

Q: Where will the debate be? What will be the hot issues? What will be settled? What will be ICANN’s role? Will ICANN still be relevant?

A: At this point, ten years…If you had asked me this question back in 1990 and I had guessed what the role of the internet would be in ten years, I would have had no…I certainly would not have guessed what happened. The answer to this question will be at best a stab in the dark and probably absolutely dead wrong. In ten years, I see the internet being very…almost pervasive in the technically advanced countries, the developed countries, and quickly becoming prevalent up to a point in the developing nations. Regrettably the internet requires a lot of infrastructure in order to be supported. It also requires a lot of education to use the technology properly and also to manufacture the technology. Unless there is…so I am going to see a larger split between the developed and the developing. I am also going to see wireless internet in a big way, I am going to see…I am going to say you will also probably have a personalized search engine that essentially you have set up to look however you want because the web will be just too vast for any of the current web engines to actually operate. They, most of the developed nations, will probably be using broadband as their basic internet connections and everything will be running on the speed of fiber. In such a world where will ICANN be?

Q: Pick any one of those. For example, the divide between developed and developing nations. Do you think ICANN will take on a role on that problem?

A: I think it is possible but I hope they do not.

Q: Why not?

A: Because that is a sovereignty issue and an issue that is, although part of the internet, there’s also a lot more to it. You’re starting to get into national public policy for a lot of different nations. You’re also starting to talk about subsidies, taxation.

I would really like to see ICANN having set up a very efficient system for resolving domain name disputes. By that time, they most likely will have. They will probably have to have come up with a new naming system. I don’t think the .com will hold for ten years. They’ll either have to introduce a lot more top level domain names or they will have had to have scrapped the system and started all over again. The chances are we will come out with a new identifier so the domain name system will probably not be in existence the way we see it right now. A new technology will probably have developed in ten years. Probably by a small business. Oh wait, did I put that in there? Yes, I did. Because they will have come up with a new way to identify things which will be adopted. After ten years, I think it is very likely that something along these lines will have come up. So ICANN’s primary influence…depends which way things go…could be either as a mere traffic cop in keeping everything going or they could be this large international like big brother that essentially controls everything involved in the internet and how the packets go from one place to another and who enforces their decrees by simple shutting down parts of the internet.

Q: On what does the distinction between ending up in the big brother type world or the somewhat…or the world in which ICANN is restrained to more technical management issues depend? What keeps us from being in one or the other?

A: The scope of the authority. If it is possible…well first of all a lot of nations are going to have to roll over to allow ICANN to get to that point. One of the reasons why…right now ICANN has not really done anything that has really seriously offended any countries but if they start taxing such as to collect fees to pay for internet development in developing countries, that is going to raise a lot of eyebrows of the national governments because that will be seen as taxing their citizens by a private body that isn’t even a treaty based organization that they didn’t agree to. So I think a lot of it is going to come down to the checks and balances and whether they work.

ICANN: The Threat of Defection

Q: What would you say to ICANN’s argument about limits on its own authority – what ultimately limits ICANN’s ability to take decisions is the ever present threat that large parts of the internet community including nations themselves could remove support from ICANN? That they could develop their own domain names systems and that that is what keeps ICANN from moving to the big brother state of the world?

A: There is really only one nation in the world right now that has that sort of power on the internet. That has the sheer number of users. And that is the United States. If you pull out the United States, frankly the internet collapses. Most of the servers, the root servers are here, 70-80% of the web pages and web users are here, so essentially what ICANN is saying is that the only government with the power to stop them is the United States. Which in a way is kind of disturbing to me. It is possible that a country can cut itself off but unless it has that huge of a population, that huge percentage, it is going to be ineffectual. For example, if Spain, for lack of a better idea, if Spain decides that it doesn’t like the way ICANN is conducting the internet, what are they going to do? Create their own domain name system, take themselves out of ICANN? In order to be recognized by the internet they have to have their IP addresses listed on the root server A, that is my understanding. Network Solutions has control of that but it is contractually obligated only to recognize those servers on root server A that ICANN tells it to. If ICANN tells it to pull Spain, it pulls Spain, as a consequence all Spanish web pages are invisible to the rest of the internet. Which essentially means if you are a Spanish based business trying to make a go of exporting over the internet, you have no business anymore because 99% of the world can’t see you. So essentially the only people that would actually hurt are the Spaniards. But if you pull out the United States, suddenly everything else goes down.

Q: So how then do you see ICANN addressing the scope of authority problem? What kind of mechanisms do you envision to address this problem meaningfully?

A: I really…I do not see why ICANN should limit itself. Let me rephrase that. I do not see why ICANN would see why it should limit itself. Nature abhors a vacuum. As long as the directors believe there is a need and they have the capability of filling that need, they are going to continue to expand. Really no one ever willingly stakes themselves off and says I am not going beyond this. I think there will be no limitations on the scope of authority originating from within ICANN, unless there is a massive uprising or essentially – not really uprising, rather a call for it – from the at-large membership and the general assembly. It is much more likely that such a limitation of authority would have to come through the revision of the memorandum of understanding in September of this year. To be honest, I am not entirely sure if there would be another memorandum understanding. Do you happen to know?

Q: No…

A: Do they walk free? Are they done?

Q: I don’t know.

A: That could be a very interesting turn of events. I should call over to commerce and find out…

Q: Well, let us know what you find out…

A: It could be the day after their memorandum of understanding runs, they put out a letter saying they are canceling all of this public notice stuff. The day after, the moving van pulls up in Marina del Rey and they move to Tahiti. I don’t know. All things are possible, not that that is likely to happen.

Q: So you are saying any resolution to this question of scope of authority is likely to come externally….

A: Yes, unless as I said there is a massive and uniform and unanimous push for it, which I do not see. From the ICANN membership.

ICANN: Limits on ICANN’s Authority

Q: In the best of all possible worlds, what kind of external limits would you hope to see on ICANN’s power? What shape would it take?

A: Essentially, technical management of the internet. That’s kind of broad if you think about it. The FCC often combines technical management of the spectrum with public policy. Look at low power radio and other public service requirements of broadcasters. I believe ICANN should be limited to the most part to technical operation of the internet to make sure it runs smoothly and efficiently. Any sort of policy decisions such as internet development in developing nations should be left up to other agencies. I am not saying that is not a worthy goal. I’m just saying ICANN should not be the vehicle for it. Even the domain name – the famous marks exclusion – I am getting nervous about that being on the edge of the technical management area.

Q: That’s what I wanted to ask you. Isn’t at some point impossible to draw a technical management—policy distinction? That’s precisely why ICANN is so problematic to so many people. Because decisions they call purely technical like the dispute resolution system, really have very big policy components.

A: It does. It’s very difficult to untangle the two, which is of course why you’re going to get into judgment calls and why I say there should be a scope of authority. Congress is always passing laws that are kind of pushing the envelope and our Supreme Court knocks them back down again and says ‘nope, nope. nope, you only have so much power. You cannot require – I can’t remember the name of the case – every federal agency to give you reports on everything they do. That’s out of your authority. That’s an executive function.’ Congress passed it because they wanted the power. And so it is definitely going to come from outside. What exactly is technical management and what is public policy making is going to be a judgment call and that’s why I think third party review is crucial.