June 20, 2001
Welcome to As the CaveBear Growls.
This publication is an occasional newsletter covering topics of interest to the author, generally related to the Internet to a greater or lesser degree.
Over to the left of the screen is the catalog of issues, past and present.
In the spring of 2001 I as part of the Program for Law and Technology at the California Institute of Technology and Loyola Law School, I was named a Henry C. Yuen Fellow..
Below is the prepared talk that I presented at Loyola and at Caltech.
Good afternoon everyone, I am Karl Auerbach. I am the North American elected representative to the ICANN Board of Directors and I have been working on Internet technology since 1974.
I'd like to talk to you about governance of the Internet. In particular I want to explore the basis upon which such governance may be established.
My thesis is that King Louis XIV of France, a man who treasured control over chaos, would have loved the Internet.
Louis was famous for his declaration "L'Etat, c'est moi" - I am the State.
If he were alive today one can imagine him saying: "Le reseau, c'est moi" - I am the Internet.
Louis XIV was one of history's great absolute monarchs. There was little that passed in France that was beyond his reach. One would think that something like the Internet might have gone against his grain; the wild and woolly freewheeling Internet might have made him a bit nervous.
One of the ideas in this talk is that King Louis might have discovered that the Internet isn't quite so uncontrollable as we may think. Perhaps he might have found that the Internet is a fertile field for those who wish to sow the dragon's teeth of overly broad, intense, and intrusive regulation.
Before going there, I'd like to take a detour and mention the deeper meaning of this talk.
It is the belief that present day law and technology require us to be much more than narrow specialists, that we must expand our professional selves to achieve a synoptic perspective.
I'll return to this later.
Before getting back to ol' Louis, I want to resurrect another figure from the past, Alfred Mahan.
If you have ever wondered why the United States has a naval base at Guantanamo Bay in Cuba, the answer is Alfred Mahan.
It really wasn't that long ago when the oceans of the world seemed uncontrollable; they were just too large for anyone to really control. Alfred Mahan - a captain in the United States Navy after the US Civil War - took a new look at the issue. He recognized that one could consider naval technology and geography to identify pressure points of control. From those points it would be possible for the United States to achieve strategic control of vast areas of the oceans.
Mahan recognized that Guantanamo Bay was a pressure point from which one could control the Caribbean and the yet unbuilt canal through the Isthmus of Panama.
It was Mahan's genius to recognize that what was once considered beyond effective control could indeed be mastered.
It wasn't very long ago when the Internet was heralded as the new frontier of individual freedom, a place largely beyond the reach of law or other involuntary modes of control.
That notion has been under some serious attack recently.
On the academic front we have Professor Lessig's very compelling logic that the net promotes the extension of control technology at least as well as it promotes communications technology.
On the statutory front we have laws such as CALEA, DMCA, ACPA, etc, all of which impose serious constraints on electronic activity.
On the neo-governmental front we have bodies such as ICANN attaching contractual marionette strings to Internet choke points so that those who use the net have no real alternative but to dance to ICANN's tune.
And perhaps most chilling, we have indications, such as described in Michel Froomkin's recent article in the Duke Law Journal, that on the Constitutional front, both Constitutional and statutory limitations on governmental power are being disregarded.
All of this would surly gladden old King Louis.
But there is a bit more that would really brighten up the Sun King's day.
That extra bit is apathy.
Let's face it, most people could care less about the governance of the Internet.
Most folks wouldn't know or care whether the Internet is regulated by Louis XIV, Pericles, or Ayn Rand.
It is this apathy that lets wannabe Emperors plant their royal standards on the Internet and claim sovereignty.
Who is going to act as a gatekeeper and ask what reason these conquistadors-de-jour have to be accepted as "legitimate" claimants of the power of governance?
Let me, here and now, make a confession: I am a fan of Monty Python.
In their movie, "Holy Grail", there is a scene between King Arthur and a repressed peasant. When the peasant asks how Arthur got the job Arthur cites his authority as deriving from the Lady of the Lake and her gift of the sword Excalibur. The repressed peasant is more than a bit skeptical, questioning the viability of a system of government based on swords distributed by strange women lying in ponds.
Let me give you a hint were I am going: I suggest to you that it is the proper role of those of us who have strong foundations in both law and technology to examine claims of authority.
It is our role to descry those claims that are overbroad or unwarranted.
Before we can do that we need to inquire as to what constitutes a legitimate and properly scoped claim of control over the Internet.
Le me ask this in a more interesting way: What should we require of those who wish to establish a new limited sovereignty over parts of the Internet?
I am sure that some of you will object to my use of the term "limited sovereignty".
You aren't alone. The first of these kinds of entities, ICANN, has an institutional aversion to being characterized as having any sort of governmental powers at all.
But let's be honest with ourselves. Bodies such as ICANN are acting very much like sovereigns. They create inescapable rules, impose taxes (euphemistically called "fees"), and are not subject to the control of any recognized nation-states.
Sure, the same description may apply to large multi-national corporations.
But entities such as ICANN have an additional characteristic. Unlike corporations that have shareholders, ICANN is accountable to no one.
If only for the sake of discussion, let's simply accept that there are forces working to create ICANN-like entities.
Like LaPuta, the airborne island in Gulliver's Travels, these entities would float above and disconnected from the various nation-states of the world. And like the Laputians, they exert control over those below by threatening to drop stones or do other unpleasant things. In the case of ICANN the threat is that of being made nameless on the Internet.
So let us ask this question: Is ICANN a legitimate body of Internet governance?
I'm going to try to be a civilized person and avoid theories of government legitimacy based on raw power. Anyone who reads history knows that raw power is often legitimized by the passage of time. For instance, not many of us still seriously question the legitimacy of the Norman conquest of England in 1066.
It seems to me that one source of legitimacy is an agreement by a significant number of sovereign nations. In other words, legitimacy created by treaty or international compact.
Given the dearth of treaties covering the Internet, it would be hard to find a source of legitimacy for ICANN here.
Another source, perhaps one that isn't quite as strong, occurs when one sovereign nation exercises what everyone accepts as a governmental kind of act over some new thing and the other sovereign states quietly acquiesce. For example, it is not unheard of for nations sharing a common river basin to establish agencies, without benefit of treaty or other formal agreement, to deal with river issues.
Often these kinds of regimes are eventually formalized by a treaty.
This kind of thing is often the realm of diplomacy, but it is also perhaps the realm in which some legitimacy may be found for ICANN.
Another source is an act of a sovereign that in some way is less than classically governmental and to which other sovereign states acquiesce. I'm thinking here about something like the way that the British gradually expanded their presence in India from commercial enterprises to a full-fledged Imperial government.
It is possible that we might find some claims of legitimacy for ICANN under this theory.
Historically legitimacy can be derived from a purely private act:
The Morman state of Deseret was the result of a religious migration in the mid 19th century.
Sealand is a present-day attempt to create a new sovereignty.
The key here seems to be whether the existing sovereigns allow the new entity to act on its own for a sufficiently long period that "legitimacy" slowly grows, like ivy over a new building, until legitimacy is simply accepted by nearly everyone.
Given ICANN's youth I don't see that ICANN is going to find much legitimacy under this theory.
Certainly one of the aspects of legitimacy is "doing things well" and "doing things right". A claim of legitimacy is much less likely to be contested, and hence will have a better chance of being reinforced by the passage of time, if the new entity does good things in good ways.
A prime example is the Red Cross. No one can seriously deny its status as a legitimate supranational entity.
ICANN might have had a chance of obtaining this kind of legitimacy, but it seems intent on squandering the opportunity.
So what does all this mean?
It means that we forgot something important: the legitimacy conferred by the consent of the governed.
ICANN's not going to be able to draw much water out of that well.
Let me suggest to you that there are probably good reasons to have various bodies that exercise some degree of final control over parts of the worldwide Internet.
These bodies will be quasi-sovereign simply because their decisions will be Internet-wide and hence span the world without stopping at any national borders. This means that we - and I'm not using any royal forms here - we, you and I, have an obligation to pound on the gates of the Internet Versailles and demand that Louis-the-Internet show us adequate credentials.
Why does this obligation fall on us?
Because we - and again I'm talking about those of us here in this room - have the expertise and knowledge to have a synoptic perspective.
We are in a position to be wise.
Indeed, it is our ethical obligation.
So let me close by suggesting to you that each of you must use your expertise to examine the development of governance structures over the Internet and to inquire whether the new institutions are constructed on solid foundations or upon vacuous self-declarations.
Let me finish by expressing the hope that I've raised some hackles on your backs and some questions in your minds.
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