Do we need to invent new kinds of international institutions to regulate the world of high-tech globalisation?

openDemocracy debated this question with Internet pioneer Esther Dyson in a major interview last year. We focused on ICANN (the Internet Corporation for Assigned Names and Numbers) which regulates the control and granting of domain names. In part inspired by Dyson, who was its first chair, ICANN made innovative use of online elections among the world’s ‘at-large’ Internet community.

The arguments over ICANN’s future are now coming to a head. In this update, we seek to discover if the results have lived up to Esther Dyson’s hopes and dreams.

Critics charge that the organisation is secretive, undemocratic and vulnerable to the demands of corporate trademark holders. ICANN’s Board, at its recent meeting in Bucharest, have published a Blueprint for Reform, which seeks to roll back online elections.

In September, the US Department of Commerce will have to decide whether to renew ICANN’s contract to manage top-level domain names. Meanwhile, ‘at-large’ elected Board director, Karl Auerbach, has won a lawsuit against it over access to the books.

Anthony Barnett, editor of openDemocracy, asked Esther Dyson on 28 July 2002 how she assesses the forces at work at this turning point, and invites her to speculate on the way the fate of ICANN could have crucial implications for the future of the Internet and its users.

Anthony Barnett – Last year, you told openDemocracy that you hoped ICANN could help pioneer a new kind of global institution, one governed by its own community of users and providers rather than by governments, corporate interests or techies. You also added, ‘don’t speak too soon.’ Now, indeed, the ICANN Board, at its recent meeting in Bucharest, has recommended abolishing the small number of directly elected members. It seems that a setback has taken place from your original hopes?

Esther Dyson – That’s right, but it’s not over yet. The question is how do we move forward instead of continuing backwards? We’re still working on it and we have the beginnings of a structure where user groups are involved. Now we’re getting to the point where these things have to be resolved. I don’t know why I continue to be optimistic, but I do. It would be stupid to give up now.

Meanwhile, the Board needs to do more than say it ‘welcome’ user participation. It needs to fund it. I funded some of it, but that’s not appropriate – or possible! – in the long term. We’re hoping that, in order to win renewal of its contract from the US Department of Commerce, ICANN will make a few more real movements in this direction.

The heart of it is that there was never much interest in direct democracy on the part of ICANN, though they did give it a try with the ‘at-large’ elections. Were they a disaster? No. Were they broad, democratic, and really representative of a large number of users? No.

But that doesn’t matter. Going forward, you can make it better or worse. I think the goal should still be direct elections by a broad electorate. It’s hard, however, when not that many people are interested. I think that you’ve got to get the people involved first. This makes me unpopular with those who want more direct elections immediately. At the same time it makes me unpopular with the ICANN Board, which has been fobbing this off for a long time. If they could just get some effective users involved in policymaking and tone down some of the rhetoric rather than inflaming it, I think it would be very helpful on both sides.

AB – The rhetoric does seem more brutal. ICANN lawyer, Joe Sims, was quoted as saying, ‘we spent three years throwing time and energy down the direct election rat hole.’

ED – Yes, and the most vocal of the ‘at-large’ critics of ICANN have also been their own worst enemies.

AB – Such as Karl Auerbach, the elected ‘at-large’ Director who sued ICANN for not allowing him to see the books unless he agreed to their confidentiality?

ED – I don’t think there was anything to hide in the figures. They should have just shown them to him. It was a stupid principle to stand on. At the same time, I don’t think he should have sued them. I think, in this case, again both sides are making it worse rather than better. As a result of the lawsuit, which Karl more or less won, he gets to access the books, but will have to abide by confidentiality requirements he didn’t want to agree to in the first place. I wouldn’t call it a victory for either side, but it’s a big public relations loss for ICANN and a wasted-opportunity dispute.

The issue is insiderism, not Americanism

AB – It’s very difficult for outsiders to follow what is going on. What are the forces at work?

ED – Well, the Board has produced a proposal for a structure that is self-perpetuating. You create an institution and its first instinct is self-perpetuation. The people on the ICANN Board are generally well meaning. They want ICANN to succeed. It’s just that they have different notions about how to do that, and perhaps different notions of the ultimate savviness of users.

Users do know what they want – if they know enough to think about it. The problem is that there aren’t enough users who take an interest. Meanwhile, the Board is way too insider-focused. But then, well, what do you want to do? Give the Markle Foundation, which supports participation, an automatic seat on the Board?

It’s hard to figure out who is going to make these choices. That’s why we need some direct elections. But who’s going to select the electorate? The Board fears that one or two people will create a following, such as eight hundred people in a particular region, and sway the results. It’s a difficult problem: how do you create yourself out of nothing?

At the same time, many of the Board’s proposals are unsatisfactory. They’ve not done a good job of bringing in either the existing ‘at-large’ community or the representatives of the Country-Code Top Level Domains (ccTLDs) who are another key component. It makes things feel very US-centric.

AB – But you don’t want the US government to do it?

ED – No, I did not; I still don’t. But what the US government should do, since it’s the one letting the contract, is to make clear that this thing should be more outwardly focused, more open to users, more open to the ccTLDs. It should bring people into the process rather than trying to impose its will on them.

AB – Do you say this to Stuart Lynn, the outgoing president?

ED – He’d say: ‘Yes, it’s very reasonable but, you know, we have this, this, and this problem.’

AB – What are the real interests at stake?

ED – Let’s make it clear – the Board’s interest is not to get rich. That’s why the Karl Auerbach suit is a diversion. There’s not enough money here to make anyone rich. People develop institutional affiliations and then get into positions that quickly become entrenched, without the issue of money.

AB – Is part of the problem globalising an institution that is American?

ED – No. Look at the Board members. They are very international, although the staff is more US-skewed, which is not good. But, I would not say that overall the Blueprint for Reform paper is an American product. In fact, it sees a bigger role for government than many Americans would contemplate. The real issue is that it’s too insider-driven.

AB – ICANN meets again in Shanghai this October. What would stop the Board from adapting the Blueprint for Reform?

ED – Primarily, whether ICANN has its contract renewed. If not, the game is over. And whatever conditions the US Department of Commerce may have imposed – although it has to do that carefully. The US government cannot tell ICANN what to do. But it can negotiate terms for the renewal of the contract. That’s why those terms need to be carefully constructed and defined so that ICANN cannot disregard them later on.

Don’t mourn, organise

AB – How do you feel personally about what’s happened? In a way, you are an insider and yet you try to represent the larger public?

ED – No, I’m not claiming to represent anyone. I think I’m very unpopular with the more vocal people on both sides, since I’m a compromiser. I am trying to create a situation where all sides tone down the rhetoric and can become more effective. I’m trying to come up with a solution acceptable to all sides, but right now most people are coming up with platforms to appeal to their own side only. There’s no impetus to compromise – but I’m hoping that the US Department of Commerce will force a compromise in September.

I was involved from the birth. It has not worked out as I had hoped. There are a few things I know I could have done differently. Some of them I tried to do differently, even when I was nominally in charge.

AB – For example? Or is it too painful?

ED – For example, the closed board meetings. They should have been open. It would have just changed the whole attitude. It would have made our press better…and eventually we did open them up, but the damage had already been done. Things spiralled down instead of spiralling up.

I still think ICANN is worth fixing, rather than dissolving. There are a lot of reasonable people out there and most of them just throw up their hands in horror when they hear about ICANN. We need to create something plausible that will lure reasonable people to get involved.

AB – It strikes me that you’re at the front line of one of the most important and difficult issues. You are suffering the fate of politics. In your interview with us last year you said that politics is ‘disgusting’ but the alternative, which is ‘hidden’ politics, is worse. The difficulty is to inspire the public to engage with ‘disgusting’ politics. Instead people tend to give up and only the unreasonable carry on.

ED – Yes, it’s important that ICANN be done right. Then, if it works, ICANN itself won’t be very important; it will just be a little space where parties involved in the Internet can come to agreement on the small set of conflicts that need to be resolved globally. But if it fails, and we allow a vacuum, it will be filled, probably by governments. And some single entity will control one consolidated namespace, with all the power it can get from saying ‘we represent the global will of the world’s governments representing all its people.’ Scary thought!

AB – What is this pessimistic scenario? What do you fear most?

ED – Right, if ICANN does not get reasonable, what then? Okay, here’s the scenario: it loses its contract with the US Department of Commerce, and its functions revert to the United States. Then there’s a huge outcry from the EU and other governments saying, ‘It’s unconscionable that this thing be in the control of the US government,’ which it would be.

The US government then says, ‘You’re absolutely right. We’ll hand it over to the International Telecommunications Union (ITU)’ – which has been holding meetings, making moves and planning how to take it over. ICANN will then become part of the ITU, which for years was basically lobbying against the very existence of the Internet. This will then have all the derived power of all the governments of the world.

Then it could say, for example, ‘These particular web sites which criticise governments should lose their domain names because they are not in the public interest’; that is, ‘We’re governments and we represent the public interest – and these sites are not in our interest.’ The ITU will be successfully lobbied by trademark interests and, if it follows the US, trademark interests will impose much more restrictive rules than ICANN’s dispute-resolution policy. There will be very, very little progress in anything. End of scenario.

The thing to understand is that ICANN should not have a lot of power in the first place. Fortunately, so far it hasn’t been able to stop much of anything from happening. But we do need a few new polices for the Internet and the namespace worldwide. We need to deal with the issues surrounding the ‘who is’ and dealing with registrars. You want these to be settled by the community, not by some government. You want them to be settled by the community in conjunction with the users because the users are part of the community. At the same time, you don’t want users to be represented by their governments because governments often do not represent users; they represent themselves.

AB – Would you do it again?

ED – Yes, I’d do it again. I don’t regret it. I wish I could do it again, and do it better! I have certainly learned a lot. Many of the mistakes and tensions were inevitable, but with a bit of luck it could have turned out better, sooner. If Jon Postel, who helped start ICANN, had not died, if we had begun with open meetings and more favourable press, if the US government had given us some start-up funding, and so on…. And with a little bit of luck now, and a lot of hard-earned wisdom, I hope we can still do it, again, going forward, and end up with something that works.

AB – Thank you. I hope we can come back for a further discussion, to build on the great interview we did with you last year. ICANN is a small organisation whose difficulties symbolise a lot of what’s going on in the development of world politics.

ED – In some ways, yes. Thank God no one is shooting anybody over it yet.