The United States, which in the negotiation got just about everything that it wanted, refused to sign the agreement that speaks to global Internet governance. Why? Because the United States does not want to recognize any shared governance of that which it largely controls, namely, the root domain servers that assigns names and numbers on the Internet. ICANN is an arm of the Department of Commerce, which is the government agency still in charge of those servers. The very process of this treaty poses a challenge to the United State's singular control over the technical foundation of the Internet as it operates internationally today.
The rhetoric around these negotiations in the United States has focused on two prongs that touch divergent political opinion. The "right" side of the argument harps on United States exceptionalism in an old-fashioned, imperialist kind of way. It is the same spirit that kept the United States Senate from agreeing to sign the United Nations affirmation of disability rights as a human right. We may host the United Nations in our country (New York City) but we are too powerful, too controlling, and too exceptional to participate in any agreement about human rights that the U.N. forges, beginning with the foundational Declaration of Human Rights, formed after the Second World War in 1948, and still without the signature of the United States to this day. That line of thinking is developmentally a youthful expression that does not wear well on a country that it is in its prime. Exceptionalism foregoes abasic understanding of human nature and sociology. The history of the United States is exceptionally lucky for a large swath of certain peoples over the course of its short time as a political nation state comparatively to other cultures (Native Americans and slaves, for example) and other countries (choose your pick in African, for example) in the modern era, but to suggest that it transcends the human experience is religion, not history.
The "left" side of the argument is more tricky. It appeals to the notion of the "open" Internet. Now don't get me wrong. I am not naive and therefore I am not in favor of Russia or China or Saudi Arabia having control over those servers. I not only know where my bread is buttered but I believe in its grain and on balance there is still so much to laude about the United States and its political principles. Russia with its toleration of a thriving black market makes an easy target for shame, as does China with its legal, technological and social controls the ruling party exercises over the Internet and its users every second of every day. I do not watch pornography, but I am as much a free speech advocate as the next person and recognize as a student of law that porn is a litmus test for all that is 'free" about our speech. Consequently, I do not want Saudi Arabia filtering the Internet of sexual content on principle, not personal practice. But let us not be naive in a way that blinds us to some of our own limitations. Does the United States support a "free" and "open" Internet? Not on your life, or certainly not on your money, because content owners have placed such a heavy hand on incentive over innovation in copyright scales that it is laughable to think that our country is without a challenge in this debate.
The Internet is a world historical phenomenon primarily because of the tremendous scope and amplification it gives the three "Cs:" content, commerce and communications. The United States, with its free market principles wins on commerce … although remember the privacy downside that an "open" Internet creates, namely companies that track your traffic and trace your life, profiling and defining you in increasingly intimate and intrusive, ways, a consumer culture that advances materialism, and frequently violence, and reinforces all kind of socially categorical stereotypes, etc. The adoration of the market entertains its own host of ethical, social, political and economic challenges, suffice it to say that the Internet as a hyper speed driver of the market accelerates the momentum of those issues.
The United States gets less good scores on communications. First, in terms of basic broadband deployment, we are about country number 25 for deployment, slipping down annually as other countries and whole continents find ways to deploy connectivity. Second, communications is expensive! Have you looked at your Internet and cell bills lately? If technological access were not challenge enough, having the money to buy the equipment and connection creates a widening digital divide for a large number of people in this country. Third, the government is hobbled to do much about it while locked in a Congressional and case law stalemate that limits the authority of the Federal Communications Commission. Although the horizon is starting to look a bit brighter for the FCC as the result of some recent cases, that agency remains crippled by the Comcast decision a couple of years ago that not only went against the agency as it attempted to assert rules against telecommunications companies that controlled content as a business practice (what many "net neutrality" people find troubling and would like regulation to manage) but questioned the very legal authority upon which the FCC would have to bring an action. Congress needs to rewrite the telecommunications laws to bring law and technology into proper focus so that the country does not suffer the will of telecommunications companies at the hands of clever D.C. lawyers playing word games with the out-dated legislation upon which important public policy decisions are being made today.
Content? Well, again, in terms of free speech principles, the United States still leads the way. But let's remember that in order to have something to express, it is increasingly costing more and more money to obtain it, more technology controls it, more laws protect those controls, and even though millions of people continue to commit copyright infringement on the Internet there has not emerged a critical mass of people in or outside the beltway to alert citizens to the potential dangers that overwrought copyright laws have on free speech. Good literature on the relationship between copyright and free speech exists already, but so far it has not proved enough to sway opinion. Without veering this whole blog onto that subject, allow me to make just one observation that I work with every day: the DMCA. If some one posts something to express a view, the content owner can have it removed from the Internet if they can lay a copyright claim to it. A civil action you say? Yes, but it is a law that motivates both the ISP and the poster … and that smacks of government action to me. And then we get to the section 1200 anti-circumvention provisions. Don't get me started ...
I am for balanced copyright law, not no copyright law. I am for free speech, too, and believe that in the next round of copyright laws there need be some provisions to make and break this nefarious connection between the two. I am also for an open -- but not unregulated -- Internet. What bothers me about the Dubai agreement is that too readily it became a cause celebre in the United States without any reflection on how and in what ways we are not free. It fueled the fires of adolescent rationalizations such as "exceptionalism" without taking a more mature look at how and what ways the United States could and should remain a leader in serious discussions about the legal, technical and cultural operation of the Internet around the world. We need good technical security; we need clear jurisdiction to deal with everything from fraud to commerce; we need to have some basic rules about accessibility that touch all three "Cs" while appreciating and tolerating differences among and between cultures. We need more discussion, not one-off agreements the subject matter of which does not address these vital issues centrally.
Let me conclude by saying that I don't think we should have signed that agreement, but not for the reasons that most people assume, i.e. bowing to other countries or because we already have a "free" Internet. We should not have signed it because that particular agreement was a pretext for the kind of debate and discussion that should be had openly, and not about one organization or another's right to control the Internet's standards. Let's lay our cards on the table, all counties, that there are issues related to the Internet that will not go away, and we should convene a series of serious discussions with the best, most able, fair and critical minds to address these issues in this next generation. Only then, when the process is clear and the stakes recognized and all of the issues about access and standards and rights plainly defined, would I know whether or not a signature is the right thing to do. If we focus too much on totems concepts such as "open" and celebrate what seems a momentary victory, we may loss the opportunity that the United States still has to exercise real leadership to shape global citizenship and rational Internet governance.