Seven Questions: Battling for Control of the Internet

FOREIGN POLICY: What is causing the rift between the United States and Europe over control of the Internet and what do you think will be the outcome of the summit in Tunis?

Lawrence Lessig: The largest cause of this rift is European distrust of the United States. Its not particularly related to the Internet. The Europeans are eager to stand up to the Americans, and that I think has been produced by the last five years of U.S. foreign policy. Its not really a cyberlaw problem.

From what we know right now, three different things could happen [at Tunis]. The Europeans could get it together and actually invoke the authority to exercise control over Internet governance, displacing the [Internet Corporation for Assigned Names and Numbers, or] ICANN position. The Americans could find a way to buy them off. Or, there could be a stalemate. But whats interesting is, in 1998, there was no question of the Europeans taking over because there wasnt the level of skepticism of the U.S. government, even though there was a lot of skepticism about ICANN at the time.

FP: The EU and several countries say that their nuclear option would be to set up a rival ICANN, resulting in two standards for the Internet. Do you think thats a realistic scenario?

LL: Lets talk about what that would mean. Right now, there is a limited number of root servers that point to the primary root server from which you get propagation for everything in your general top-level domain (TLD). So theres a .com server that serves 13 other servers that then propagate all changes in the .com name. And the same thing is [true] for every other TLD.org, .ing, [.edu, etc.]

From the beginning, people have talked about building an Internet that wouldnt depend upon the TLD hierarchy. It doesnt mean there would be two or three Internets, but that you would have a domain name system that wouldnt depend upon hierarchical naming. As long as theres coordination across hierarchies about ownership of domain names, you wouldnt necessarily produce any destructive results. One could query a hierarchy for the answer to the question Who owns Lessig.com? and then ask another hierarchy if we dont get an answer from the first one. So it is possible for different systems to evolve that would allow the Europeans to control one part and the Americans to control another without destroying the ability of the Internet to continue to function the way it does now.

What people are afraid of is that there will be a split within the single hierarchical system which would result in two different populations of the dot-com domain name system existing out there. Then there would be a real conflict. My view is that if in fact there is a separation like that, there are a lot of incentives for these two separate roots to figure out a way to coexist. There would be lots of anger [when] you realize that youre not getting the IBM.com you expected. But theres no reason why you couldnt have multiple root systems.

FP: Some say a shift away from ICANN would empower countries such as North Korea, China, and Iran to censor or control the Internet. Is that an accurate criticism?

LL: The ability to facilitate censorship is independent of the question of who owns the roots. Say we have the system we have now and China wants to censor it. It builds a list of IP addresses it wont serve content to or wont allow to be shown on its servers, and then it basically uses that list to filter all IP packets that come across the Chinese network. If the world had two roots, one China-controlled and one U.S.-controlled, then it would be one step simpler for China to censor because it could filter its own root. But it would still have to do the same things it does now with regard to the U.S. root content. The technology youre using to censor is not necessarily tied to the architecture of the root name.

FP: Do you see international governance of the Internet having an impact on the free flow of ideas and commerce on the Web?

LL: Ive been a critic of ICANN for a long time, especially in its early stages. But I think what its trying to do now is pretty close to what it ought to be doing, which is just trying to serve technical functions in the narrowest possible way. Theyve resisted a lot of policy work that they could have been doing.

Right now, I hope that ICANN continues to exercise control. Its not because I have any affection for the U.S. governments control over ICANN, but because I think that theyve developed an internal norm about making as light a regulatory footprint as they can. I would be worried about transferring authority because I think that some other body coming in might imagine it can use its power over the domain names to try to regulate all sorts of policy objectives. Wed all be worse off if that happened.

FP: Are the biggest challenges and questions that face the Internet right now essentially social and political, or are they more technological?

LL: I dont think theres an or. The fundamental point Ive conveyed in my writing and teachingapparently no policymaker has yet learned thisis that policy is a function of technology. You cant do policymaking in cyberspace without thinking about the interaction between technology and policy. Its as ridiculous to be a policymaker and believe that you can make policy without thinking about the technology as it is to be chairman of the Federal Trade Commission and think that you can talk about competition policy without thinking about the economic consequences of the rules you impose. A smart policymaker asks, What technology will my policy produce? and Will the net result of that technology in my policy be the policy result I want?

FP: Are there any decisions that will be taken at the summit in Tunis that you see as being overshadowed by the EU-United States conflict?

LL: I question whether the [summit] is considering all the issues it needs to be. I was a speaker at one of the preparatory committees and, before my speech, I was asked about what I was going to talk about. I said I was going to talk about the need for balanced intellectual property rules in order to produce the best information society [possible]. The chairman of my session said I was not allowed to talk about intellectual property. She said thats a problem for the World Intellectual Property Organization. It was ridiculous. It revealed a way in which the deal was struck to establish the World Summit on the Information Society, which was as long as you dont touch intellectual property you can talk about whatever you want. The insane thing about that position is that theres no way to strike the right balance unless you consider intellectual property. [For example,] database rights are going to fundamentally affect the future of the information society. The question remains whether the [summit] will be allowed to develop any coherent policy position about the proper balance for intellectual property. My skepticism suggests that they wont. This issue will be negotiated off the table by those who want to keep control over that policy.

FP: What impact, if any, will recent changes to the makeup of the U.S. Supreme CourtRoberts and possibly Alitohave on information technology, intellectual property, and the Internet?

LL: No idea. I dont know anything about Alitos views about technology. I dont think hes ever said anything interesting about it. I think Roberts, just based on the kind of work that Jeffrey Rosen did in his recent New York Times piece, will be smart and eager to understand and do the right thing. But I dont think we have any good information about how they think about these issues.

Lawrence Lessig is professor of law at Stanford Law School and a columnist for Wired magazine.