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The Risk of Geo-Political Masochism - The US Congress and ICANN

On August 4, before recessing for the holidays, the U.S. House Committee that oversees the Commerce Department published their opinion, under the chairmanship of the powerful Democrat congressman Henry Waxman, proposing cementing the US-government oversight of ICANN by making the JPA (Joint Project Agreement) permanent, and ending the current “transition phase”. This opinion triggered many comments, although probably due to the August recess, not a lot of public discussion. The public debate will pick up in September.

Waxman’s opinion could be interpreted in various ways. The most likely interpretation is that it was a preemptive move by the trademark lobby, aimed at maintaining the status quo of the Internet Domain Name system. Almost any change in the scenario of ICANN could lead towards more diversity in domain names, increasing the difficulties for trademark businesses to enforce control of big trademarks. One can also argue that it is part of a political signaling strategy aimed at getting the reaction of public opinions both in the USA and globally.

However, so far, there are no comments discussing a very simple question – Is the proposed solution (permanent JPA) going to serve US interests? The answer is NO. Putting ICANN under permanent US control won’t serve US national and public interests. This would be the result of any objective and rational policy analysis. Obvioulsy, one should be careful with "rationality" in politics. Politics is not very often rational, coherent and logical. If we can paraphrase an old master of politics, Bismarck, politics (law-making) is like sausages. It is better not to see them being made. While we should understand the limitations of logic and rationale in politics, we should not stop bringing them into the political discussion. They are the dialectics of political life. What would an objective analysis of the US public and state interests when it comes to ICANN, JPA and IG in general show us?

Making the JPA permanent is not in the US national and public interest. The political cost for the US would be too high. While other governments might tolerate the “process” and “horizon/moving targers”, they would not be ready to accept the JPA as a definite and permanent resolution of the ICANN debate. Would it be of an interest of the USA to fight this battle of making the JPA permanent? The first question is, what should the US fight for? What is it going to protect? What is the nature of the US power over ICANN? Why should the US make this “power” permanent? As I argued previously, the US power over the root server is paradoxical. The potential power of removing a country from the Internet (by deleting the country’s domain name) can hardly be qualified as a power, since it has no effective use. The key element of power is forcing the other side to act in the way the holder of the power wants.

The use of US “power” over the Internet infrastructure could create unintended consequences, including countries’ and regions’ establishing their own Internets (balkanization). Incidentally, we might re-consider the use of this term “balkanization”, since the Balkans have become – to the surprise of many – quite rational in organising regional cooperation.

In the Internet disintegration scenario, the main loser would be the US. The US benefits from an integrated and global Internet on many fronts. Most of the Internet industry is based in the USA, coincidentally, in congressman Waxman’s state of California. Google, Yahoo, Facebook to name a few directly depend on existence of the Internet in its current form. The more disintegrated the Internet becomes, the less business they will have.

Apart from business, the dominance of the US in the Internet is linked to the English language and socio-cultural and socio-political values. The status of English as a global language was clearly established with the Internet era. Individualism, freedom of expression and democracy, to name a few core values of the US political system, have been disseminated through the Internet as a tool of empowering millions worldwide. One can continue with arguments that basically say that the main and overarching US interest is to preserve the global and inclusive Internet. It is not matter of altruistic or utopian approaches, but a clearly defined interest.

Morgentau, the father of the realist school that explains international relations through power, would come to the same conclusion. All other objectives are less important. A striking concurrence is that US interests (based on this analysis) coincide with the interests of many people worldwide who would like to see a global, open and creative-driven Internet. For the US it can be an ideal scenario in which the national interest coincides with global interests. During his first six months in office, Obama has been trying to do exactly that – to align US national interests with global ones (Cairo speech, financial crisis, climate change to name a few). Has there been any attempt in the USA to explain this rather simple truth? Politicians will understand it easily. They understand the language of interests and power.

Waxmans’ Opinion for a permanent JPA does not contribute to the main US goal – preserving a global and open Internet. A historical, emotional argument could also be re-visited (frequently used in Congress): Is it more important to keep the Internet under our control since we invented it, or to preserve the Internet the inventors created? What is in the best interest of the USA? None would be in position to feel like a traitor, “one who would sell the Internet”. The Internet will become even more anchored in the US economic, social and scientific fabric. The price of – if it is needed – having ICANN headquarter move from Marina del Rey - would be a token payment for many other gains.

Are there any attempts to explain this to the US political, economic and social elite? Are there any attempts from the US Internet industry to push this? Once the Internet is re-nationalized I do not see why the national or regional Internet would need a global Facebook or Google or other application. What about academics and think tanks? Is there any paper analyzing the ICANN/JPA/IG debate from a pure interest or cost-benefit perspective?

As in many other issues, and even more dramatically in this one, the US national discussion will affect all Internet users. In this context, it is important that IG scholars from the USA try to rationalize the policy debate by anchoring it in discourse about its impact on the national interest discourse and in a cost/benefit analysis. The efforts to rationalize policy debate are worthy. In this case they are not necessarily utopian, given the overall atmosphere in Obama’s administration.

As far as I can see from the Internet Governance Caucus (IGC) governance list and few other attempts, the discussion is too focused on questions of California law and contracts. It should be zoomed out to the larger political interest, in language that politicians can understand. Once the open and inclusive discussion establishes what the US public and national interest is, it will be much more difficult for various lobbyists to push their very narrow interests and agenda through the Congress and administration. Ultimately, decision-makers will have to decide if they want to protect trademark interests or the US national interests. The same can apply to other conflicting interests in the USA IG-debate.

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Comment by Emmanuel Edet on August 27, 2009 at 5:49pm
As usual Jovan has given of an analytical piece to chew upon. Quite frankly I have never looked at the desire by the US to control the Internet from an Intellectual property perspective. Senator Waxman’s opinion I presume is based on the assumption that the current structure of International politics and the Internet will never change. I think I will differ on that. If it is indeed a political signalling strategy aimed at getting the reaction of public opinions both in the USA and globally then whoever is testing the opinion is not listening to the already expressed opinion on US control of the Internet. While there are no viable alternatives yet to the JPA, I think it will be more sensible for the US to loosen its grip on ICANN instead of making it stronger. I remember the scenario prediction simulation games we had in Hyderabad. I foresee a situation where the internet would be disintegrated and you have an option to connect to which ever internet you want, like cable television. The breakup of the Internet will neither benefit the US not its opponents as the strength and importance of the Internet lies in its wide reach. I would live to see how this plays out. I have never heard fo an agreement in perpetuity I hope this will not be the first.
Comment by Jovan on August 26, 2009 at 10:44pm
Thank you Khaled for a good reflection. We should not forget that inertia is "natural law" of social systems. Inertia is particularly powerful in international relations. In the UN there are some resolutions that have been re-adopted for the last 40+ years. Policy-makers and diplomats do not like risks. It is the reason why status quo and inertia dominate global politics. Waxman & co did not understand it. If the JPA continues as open-ending process (with some corrections towards internalisation) it could be acceptable for many players, including BRICs countreis and EU. But if the JPA is cemented as the Waxman suggests, it will create a completely different dynamics and open the Pandora box.

Why the extension of JPA could be acceptable for BRICs (Brasil, Russia, India and China) and EU?
- As we already discussed US does not have effective power over ICANN or domain name; it is a power that cannot be effectively used.
- Whenever it was important, some of BRICs managed to influence the ICANN decisions via US government (e.g. XXX-domain debate and decision); their interests were protected.
- BRICSs and other critics of the current arrangement are not sure what could be alternative solutions. After the recent financial crisis, politicians and diplomats are increasingly concerned about stability of the global economic and social systems. Most of them prefers evolution to revolution. The slogan that was basis of ICANN's defense during the WSIS "“If it ain’t broke, don’t fix it”, may got a new relevance in different global policy landscape.

All in all one can expect further internationalisation of ICANN through another extension of the JPA. It would weaken but not cut the “umbilical cord” between the US government and ICANN.
Comment by Henry Owera on August 26, 2009 at 6:14pm
Very insightful conversations here. Thanks Jovan for restarting it and Khaled, I must add it that, I read the whole 12 page PDF document you recommended. Having recently come through the IGCBP09, I feel well initiated into the the kinds of a discourse. Greetings from South Sudan.
Comment by khaled Fattal on August 26, 2009 at 5:17pm
Jovan, I agree with many of your points and arguments. I had wished you had carried the arguments one step further in order to prevent any possible misunderstanding of your position. The unintended consequences of your arguments may be that people may inaccurately conclude that you are supporting the release of ICANN from any oversight by either the US or the international community on September 30, 09. Are you? This is what ICANN is asking and lobbying heavily for and I believe that this would be an equally big mistake to that of a permanent JPA, but with graver consequences of international proportions. ICANN is not ready in an any way, shape or form to be set free on its own accord for many fundamental reasons like: Transparency, Accountability, Maturity, Structurely, and many others. So, I believe neither one of these two extreme proposals is positive or practical. I had detailed this and proposed specific steps and solution on how to move forward in my June 8th, 2009 MINC letter to the NTIA on the JPA. I recommend you and others have a look at it. It can be found and read in English and Arabic on the MINC website at
http://www.minc.org/news.aspx?id=412&lang=en or on the NTIA site at http://www.ntia.doc.gov/comments/2009/dnstransition/080.pdf .
Best,
Khaled Fattal
Comment by Jovan on August 25, 2009 at 5:32pm
Ginger, the idea of ownership is deep in our "collective unconsciousness". Some can argue that it is part of human nature. I think that it is part of social conditions developed over centuries. There have many attempts to change it. It is some sort of renewal of utopian energies. The last was communism and, as we know, it was a big failure. Marx wrote thousand of pages. He in depth rational and scientific arguments about society. But he missed one aspect - human nature. People wants to own and control their physical environment. Here is where the Internet pose the greatest challenge (through its architecture, creative commons, etc.). How to reconcile non-ownership model of the Internet and human instinct "to own". If you analyse carefully this contradictions is is behind most of modern IG issues. If we use Hegelian dialectics this contradiciton may nuture a new quality in modern society. Almost forget.... I think that trademark community "packaged" commercial interests in the "ownership argument".
Comment by Jovan on August 25, 2009 at 5:18pm
Rafik, good points.... a few comments. Humans are emotional. It is how it should be. We are - to different extend - passionate, animated, irrational, .... you name and you have it. There is one problem in the modern policy. Emotions are usually labelled negatively. The more emotional a person is, the less he/she is perceived to be serious. It is not correct. Emotions usually shows commitment. All in all emotions cannot be judged negatively/postively out of the context. In the Balkans (like in the Middle East), emotions are part of identity. But, in some contexts like in 1990s emotions had a very negative impact (manipulated by politicians).I can understand the US Congressman arguing that the Internet is US invention (predominantely) and it should be preserved. It is understandable emotion that can resonate with general public. But, it can be the only input in the policy process. It may be conforonted with other emotional argument or with rational analysis (as rational as it can be). The financial crash is returning us to common sense. Any policy has to take into consideration real people (not artifical numbers who should act "rationally"). The situation is better today than one year ago.
Comment by Rafik on August 24, 2009 at 8:52pm
about rationality and logic it reminds me the middle east crisis, for decades Israelis supposed that arabs would never behave in logical way and take rationale decision, that wrong assumption made them until now to mistake in interpreting arab countries proposals. israel always tried to impose the de facto policy because they have the power and we can see the result.
the suggestion of congress for oversight sounds a XIX and XX policy like for Panama and Suez management even for really small scale. when the local countries hadn't the real control on those channels some foreign countries had power and even made war to defend this privilege (1956 war or 'changing' presidents in Panama).
Back to Internet, USA is benefiting a worldwide Internet for companies like Google but this company didn't success to penetrate the far-east markets and those countries have their own champions and even own standards for mobile technologies, they can in worse case run a local Internet as people there consume a lot the local content (it is personal experience, in Japan, people consume primarily japanese content and have alternative services for everything)
It is interesting to see how narrow interests (trademarks etc) can harm the stability of the Internet and is the law a danger for Internet (freedom of speech, IPR etc)?
Comment by Virginia (Ginger) Paque on August 24, 2009 at 7:47pm
Very interesting position, Jovan, thanks for posting. Is the only advantage of the JPA for the US in the control of the IDNs? If so, the trademark lobby is overwhelming any other logic or common sense, as you point out. However, do you think there is also a "psychological" effect of "owning the Internet"--whether true or not? Do most people in the US, or even in the world, actually see this as a battle over trademarks, or as a battle over ownership of the Internet? Does that significantly affect the negotiating stance?

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