Robert Di Nicolantonio

WHO RULES THE WEB?

INTRODUCTION

Who decides the owner of a web address? Who resolves contests between
competing parties for the same domain name? Should the name and street address
of a web page owner be visible? Should governments of sovereign nations be able
to filter internet content?

These are all questions that impinge upon internet governance. Given the almost
seamless operation of the internet, and that most of the superstructure – and
software - is invisible to the user, it is easy to overlook questions of how the
‘information superhighway’ is ‘policed’. Who actually makes the ‘road’ rules? And
investigates infractions?

Moving away from motoring metaphors we should perhaps start with a definition of
internet governance. A good one, given by Milton Mueller, is;

Collective action, by governments and/or the private sector operators

of TCP/IP networks, to establish rules and procedures to enforce
public policies and resolve disputes that involve multiple
jurisdictions.1

Actually, it has been argued that there are two definitions of internet governance,
one ‘narrow’ and the other ‘broad’.2 The narrow definition holds that internet
governance should be limited to the management of the technical internet core
resources only. The broad camp argues that internet governance should include all
public policy issues related to the internet, including ecommerce, cybercrime and
freedom of expression.3 The former approach might be achieved with a relatively
simple and quasi-democratic committee structure working alongside private sector
interests, while the latter plan calls for enhancement of current international
telecommunication agreements and the principle of governmental leadership. Not
an easy thing.

1
Milton Mueller, John Mathiason, Lee W, McKnight, Making Sense of “Internet Governance”: Defining
Principles and Norms in a Policy Context <http://siniu.mysite.syr.edu/blog/PDF/su-igp-rev2.pdf>
(accessed 20 Sept 2010).
2
Jeanette Hofmann ‘Internet Governance: A Regulative Idea in Flux’
<http://duplox.wzb.eu/people/jeanette/texte/Internet%20Governance%20english%20version.pdf>
(accessed 20 Sept 2010).
3
Wolfgang Kleinwachter, ‘The History of Internet Governance’, 2009
<http://www.intgov.net/papers/35> (20 Sept 2010).
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 Robert Di Nicolantonio

The fascinating thing, at least for the political anthropologist or student of policy, is
that these matters are still being decided at this moment. For example, the Internet
Governance Forum (IGF) was first convened only 4 years ago. Its theme for its latest
meeting (3 days ago in Lithuania) was; 'IGF 2010 – developing the future together'.4
And yet, it could be pointed out that the IGF is just that; a forum. It has no decision
making authority.5 It is, if you like, a toothless tiger. The ‘real’ governance decisions
are being made elsewhere, as we’ll see below.

Many stakeholders, big and small, have an interest in the answers to these
questions. They include sovereign governments, social networks, the military,
educational institutes, medical systems, industry and domestic users. How are
these competing interests to be negotiated? And in what forum? Who makes the
rules and who enforces them? Globally. Is it representatives from all levels of
society in a democratic forum, or only a knowledgeable technocracy who truly
understands the issues? Should the US, arguably the inventor of the internet, be
given the task alone, or alternatively, should the task be given to an already
existing international organisation such as such as the International
Telecommunications Union (ITU) or other United Nations bodies?

In this essay I will explore the possible bases by which you generate, de novo, the
rules and regulations of the internet. In exploring this, I will firstly introduce the
main political philosophies that have been proposed as founding laws for a well-
ordered society from ancient times to modern, and even post-modern. I will then
try to provide a brief overview of the history of internet governance as it has
evolved, as well as the current state of play.

POLITICAL PHILOSOPHY THROUGH THE AGES

The Ancients
Aristotle (384-322 BC)
This Greek thinker, considered by some as the greatest of the philosophers, in his
book Politics,6 examines the many possible ways by which a society can be ruled.
Examples include; monarchy, democracy, aristocracy, oligarchy, tyranny and
ochlocracy (mob rule). In his teachings Aristotle argued for moral values, scientific
truth, but above all, common sense. With regards political theory, Aristotle argues
that humans are by nature a social animal.7 Communities will always arise, but how
are they to be run? Who decides how they shall live?
4
Internet Governance Forum, 5th Annual Meeting, Vilnius, Lithuania, on 14-17 September 2010
<http://www.intgovforum.org/cms/component/content/article/96-vilnius-2010-meeting-events/475-
preparing-the-igf-2010-meeting-> (accessed 20 Sept 2010).
5
About the Internet Governance Forum, Internet Governance Forum,
<http://www.intgovforum.org/cms/aboutigf> (accessed 20 Sept 2010).
6
Thomas Mautner, Dictionary of Philosophy, (Penguin, 1999) 40; Marett Leiboff and Mark Thomas,
Legal Theories in Principle (Thomson Law Book Co., 2004) 54.
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The aim of the city state or political community is the good of the community. This
aim of the community is to be stated in its constitution. In the view of Aristotle, the
constitution, like other laws, is to be made in the assembly with the contribution of
the citizens themselves. All are free to address the assembly. Thus, in his view of
the ideal society, the citizens are more enfranchised than within a democracy. 8
What is the aim of the society? According to Aristotle, the aim is the ‘noble life’, and
not for just the elite, but for all.9

But who should actually rule? Who actually, finally decides? Aristotle does not think
it should be the oligarchs, who according to him, seek more wealth, or the
democrats who seek equal rights for all (despite people clearly being quite
unequal!). Rather, the state seeks the ‘good life’ for all, and the best way to achieve
this is to allow rule by the ‘best’ of the people (the ‘aristoi’), who are those people
capable of acting with
wisdom. Rule, in short, by the Aristocracy. This idea would remain of influence for
the following 2000 years.10

Fast Forward to the Enlightenment…

Following the Dark Ages, during the period from approximately 1600 to the 1800’s,
revolutions occurred in human thought that resulted in a major rethinking of much
in science, art and political theory. Some of the major thinkers in the area of
political theory and law, during this period, are now discussed.

Hobbes (1588-1679)
Unlike Aristotle’s society naturally working towards the good of society, Hobbes tells
us that the natural state of man is enmity, and by nature always prone to ‘warre’
and that given this, ‘the life of man (is) solitary, poore, nasty, brutish and short’.11
Thus for protection, like-minded individuals form a social contract whereby they
sacrifice certain liberties and rights (to a monarch) in exchange for protection.12

Hobbes eschewed Aristotle’s view that all men are suited to a life in polity working
towards the good life. For Hobbes, people are often greedy and vainglorious, which
7
What better example of this can there be than the explosion of interest in Facebook and other social
networking sites.
8
Except, apparently, women and slaves!
9
Except, once again, women and slaves!
10
Aristotle, Wikipedia <http://en.wikipedia.org/wiki/Aristotle> (accessed 20 Sept 2010); Fred Miller,
Aristotle's Political Theory, The Stanford Encyclopedia of Philosophy (Spring 2010 Edn), Edward N.
Zalta (ed.) <http://plato.stanford.edu/archives/spr2010/entries/aristotle-politics/> (accessed 20 Sept
2010).
11
Thomas Mautner, Dictionary of Philosophy, (Penguin, 1999) 251; Marett Leiboff and Mark Thomas,
Legal Theories in Principle (Thomson Law Book Co., 2004) 62.
12
Ibid.
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gives rise to conflict. Violence is never very far away according to Hobbes, and
because of this, a strong state is required working under a covenant run by a
sovereign individual or sovereign assembly. 13 Involvement of the average man is
not
then like that in Aristotle’s state, where a man would rub his virtue onto many
through participation in law-making or magistracy. Rather, participation for Hobbes
meant largely obedience, but with the opportunity for safety and economic and
social success.14

John Locke (1632-1704)

Locke viewed things most differently. For him, it was the repressive monarch, or
government, was to be resisted and the rights and freedom of individuals was
paramount.15 The role of government was to protect property, not tax it.
Government, law and civil society were, once again, to exist under a social contract,
but this time, the purpose of the contract was to allow men to enjoy their
inalienable rights, namely, ‘life, liberty and estate…’.16 It is the role of political
authority to protect these things, and it is from this that political authority obtains
its legitimacy.

Note also that when the government breaks this trust with its people (by reducing it
to slavery under arbitrary power), then the people have a right to resistance and
even revolution.17

Modernism (& Positivism)

The rise of empiricism and positivism in the 18th Century saw a gradual turning
away from both Natural Law theory and the notion of some (unprovable) social
contract. From a legal perspective, ‘higher law’ was regarded as irrelevant and that
all that mattered was the law of the state based on the will of the sovereign
power.18 This will was expressed mainly in acts of legislation, and the authoritative
acceptance of judicial decisions. Leading protagonists of these views are now
discussed briefly.

Jeremy Bentham
Preceding talk of natural or god-given rights was nonsensical to the utilitarian
Bentham. There can be no legislation without legislator and thus this ‘talking to the

13
Ibid.
14
Ibid.
15
Thomas Mautner, Dictionary of Philosophy, (Penguin, 1999) 318; Marett Leiboff and Mark Thomas,
Legal Theories in Principle (Thomson Law Book Co., 2004), 64.
16
This phrase occurs almost verbatim in the US Declaration of Independence.
17
Thomas Mautner, Dictionary of Philosophy, (Penguin, 1999) 323.
18
Ibid 437.
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sky’ by previous social theorists was fantasy. The law was commanded by a
superior, and this superiority consisted of being able to enforce obedience which, in
turn, gave rise to a duty on the part of the ruled.19 Moral questions were to be
divorced from legal ones, and therefore, posited law was to be taken ‘as is’ and
analysed on its own terms.

The positivists then set about developing an analytical framework by which laws
could be analysed ‘as is’.

It can be seen that positivism’s appeal lay in the freedom of action that it allowed. If
there is no posited law that prohibits an action, then under the laws of most
Western democracies, you are at liberty to perfrom it. There will be no legal
sanction. Whether the act is a ‘sin’, or not, is entirely a different question! But note
that this leads to a limitation in positivism, namely, that by detaching values from
the law it is unable to provide a positive force for the promotion of values which we
believe – as a community – to be important.20

This then brings us to modern legal times which can be characterized as a mixture
of personal liberalism and conservative and pragmatic legal positivism.

But this state of affairs in the ‘modern’ jurisprudential world has been challenged.
And in a way that threatens no less than the entire post-enlightenment Western
cannon!
Law included.

Post-Modernism – huh?

So far, many of the thinkers cited above have proposed their views in narratives.
Essentially, they told stories. And convincing ones. But, if you stop to think about it,
they did so with little or no evidence. The empiricism at the centre of scientific
revolutions taking place during last two centuries would however also infect the
social sciences. This ‘infection’ is called post-modernism. But what is it, really?

Postmodernism is a broad term which encompasses an approach to analysis which

rejects ‘Enlightenment’ values and the belief in absolute values which characterize
modern philosophy, including legal theory.21 Its hallmark is suspicion of authority,
received wisdom and values, and does not accept that rationalism represents an
unbiased, neutral and independent tool for seeking truth.

19
Thomas Mautner, Dictionary of Philosophy, (Penguin, 1999) 64; Marett Leiboff and Mark Thomas,
Legal Theories in Principle (Thomson Law Book Co., 2004) 144.
20
Marett Leiboff and Mark Thomas, Legal Theories in Principle (Thomson, 2004) 165.
21
Ibid 229.
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In particular, postmodernism is sceptical of so-called ‘meta-narratives’ – universal

theories which claim to provide a single, over-arching explanation of things. These
usually focus on local and particular explanations for social phenomena which are
accepted as being ‘true’, but in reality, only represent the best explanation in that
particular context. ‘Truth’, in a post-modern context is always contingent and
conceals and suppresses other truths.

This attack on widely held ‘truths’ extended to the process of reason itself. Reason –
so the argument goes – has been shaped by the dishonest pursuit of logocentrism.22
Derrida, in particular, held that the price to be paid for this quest for a perfect world
made of words is the suppression of all that is uncertain, and which doesn’t fit and
also that which is different. He held that meaning is not inherent within the words,
but the relationship between them.23

Any reasoning we engage in therefore is provisional and relative and can be traced
back to the true point of difference between phenomena. This peeling away of
layers of added ‘meaning’ is called deconstruction.

Many of these ideas, when absorbed, are somewhat shocking.

But what about the law? Surely not!

Postmodernism and the Law

I must admit that writings on the post-modernist readings of the law are difficult to
fathom. The social sciences use a language which I am often unable to understand.
But perhaps the following passage will give a sense of the post-modern view of the
law. Roderick Long here addresses the assumption that by remaining in a territory
controlled by a Government, there is an implicit social contract that you give
consent to be governed and that this consent is what gives legitimacy to the
government;

I think that the person who makes this argument is already assuming
that the government has some legitimate jurisdiction over this
territory. And then they say, well, now, anyone who is in the territory is
therefore agreeing to the prevailing rules. But they’re assuming the
very thing they're trying to prove – namely that this jurisdiction over
the territory is legitimate. If it's not, then the government is just one

22
Defined as the desire for a perfectly rational language that perfectly represents the real world; see
Richard Appignanesi and Chris Garratt, Introducing Postmodernism: A Graphic Guide (Totem Books,
2007) 77-78.
23
One could draw an analogy by saying that the internet is not actually the hardware of the system, but
is actually the relationship that the hardware elements bear to one another when operational.
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more group of people living in this broad general geographical

territory. But I've got my property, and exactly what their
arrangements are I don't know, but here I am in my property and they
don't own it – at least they haven't given me any argument that they
do – and so, the fact that I am living in "this country" means I am living
in a certain geographical region that they have certain pretensions
over – but the question is whether those pretensions are legitimate.
You can’t assume it as a means to proving it.24

No assumed social contract. No ‘truth’ about the situation, at least until it is

determined – and even then it is only one version of the truth. No Natural Law. And
no aristocracy for that matter.

Judicial interpretation of the effect of postmodern thought on the law is – perhaps

understandably – sparse. While one Australian judge warns us about the nihilism
that this approach might take,25 another as at least open to the postmodern
worldview.26

Against this backdrop, I would now like to see how internet governance has
evolved, and whether it bears any relationship with the theoretical models
summarised above.

BACK TO THE INTERNET – QUICKLY.

A Brief History of Internet Governance.

I display a summary of the development of internet governance on the timelines

shown in Figures 1 and 2, with Figure 2 focusing on the rapid acceleration of
governance matters following the creation of the World Wide Web (WWW) and the
realisation of its enormous commercial potential. Note that the core WWW
infrastructure at the time was located in the capitalist heartland – the USA.

It is not surprising therefore that a tug-of-war would eventually break out over
control of the internet between private, public and governmental entities. The
overall factors at work in this tug-of-war, as I see them, are summarised in Figure 3.

24
Roderick Long, ‘Libertarian Anarchism: Responses to Ten Objections’, talk given at Mises Institute,
August 6, 2004 < http://mises.org/etexts/longanarchism.pdf> (accessed 20 Sept 2010).
25
Crennan J, ‘Scepticism and Judicial Method’, speech to Australian Bar Association conference, 28
June 2007 <http://www.hcourt.gov.au/speeches/crennanj/crennanj_28jun07.pdf> (accessed 20 Sept
2010).
26
Heerey J, ‘Storytelling, Postmodernism and the Law’, (2000) Australian Law Journal 74, 681.
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 Robert Di Nicolantonio

In one sense, the work that needed to be done by the governance structures was no
less than try to change the face of international law. It is not entirely hyperbole
when Jon Postel said;

This new organization [ICANN] will be unique in the world – a non-

governmental organization with significant responsibilities for
administering what is becoming an important global resource.27

Have any of these events followed the historical models of law making summarised
above?

There is no doubt that the early internet was in the hands of Aristotle’s Aristocracy,
or more accurately, Technocracy.28 The ‘wisest’ people (particularly Jon Postel) were
in charge.29 This ‘Greek’ model has been supported by the writings of noted internet
expert Weinberg.30 He points out though, ICANN’s decisions are not merely
technical; assigning TLDs is highly political – and highly commercial. Weinberg
quotes other noted internet commentator, Milton Mueller;

We don’t need a 19 member geographically representative Board, a 7-

constituency DNSO, the GAC, a Review Board, and notice and
comments procedures to make sure that .dog isn’t assigned twice. It’s
only when you’re engaged in debate over who is going to get .dog and
how they will be allowed to profit from it that such a bureaucratic
apparatus is required. And that’s because it is a policy decision.31

This, in essence, is the heart of the internet governance battle. Who actually gets
.dog, or even that it exists at all, is a policy decision. We could ask Aristotle
therefore, whether technocrats should be in charge of that?

Weinberg, at the time of writing his article, saw ICANN decisions being made in a
top-down manner, without wisdom, virtue or (therefore) legitimacy. They were not
the ‘wise’ pursuing the ‘good’ on behalf of the many.32 As Aristotle predicted, the
monarchy, aristocracy and the rich are tempted to corruption in pursuit of ruthless
self-interest. This had happened to ICANN, according to Weinberg. He says (writing
27
Quoted in; Wolfgang Kleinwachter, ‘The History of Internet Governance’, 2009.
<http://www.intgov.net/papers/35> (accessed 20 Sept 2010).
28
Technocracy Movement, Wikipedia <http://en.wikipedia.org/wiki/Technocracy_movement> (accessed
20 Sept 2010).
29
Wolfgang Kleinwachter, ‘The History of Internet Governance’, 2009. <http://www.intgov.net/papers/35>
(accessed 20 Sept 2010).
30
Jonathan Weinberg, ‘Geeks and Greeks’ (2001) Journal of Policy, Regulation & Strategy for
Telecommunications Information & Media 3, 313.
31
Quoted in; Jonathan Weinberg, ‘Geeks and Greeks’ (2001) Journal of Policy, Regulation & Strategy
for Telecommunications Information & Media 3, 313, 322.
32
Ibid 326.
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 Robert Di Nicolantonio

in 2002) that ICANN was – in essence - corrupt. It was composed of mainly

commercial players and the government hacks beholden to them. Oligarchy ruled.

‘What would Aristotle do?’ asks Weinberg to avoid instability in an aristocratically-

based rule system?33 Broaden the number of interest groups within the decision-
making hierarchy, is the reply. Allow the governed a greater voice. This will improve
stability in government. In the words of Don Chipp, the Australian politician; ‘keep
the bastards honest’.34

Other commentators have echoed this view.35

But what of Locke? Surely the commercial interests steering internet development
in their image are pursuing “life, liberty and property”? And so it is. But, and this is
what Weinberg argues, the commercial pressures, in concert with other interests,
will, on average, yield the best compromise decision. Capitalists alone at the
internet helm would have produced a very different internet to the one that we
currently enjoy.

Hobbes’ model of social contract does not seem relevant. None of the stakeholders
have been saying publically that we all should give up a quantum of our rights for
the greater good so that we can be saved from anarchy (‘warre’).

And what of the morality-free laws of the positivists? Do we see traces of their
handiwork? Not in ICM v ICANN,36 which many see as a test of ICANN’s legitimacy.37
Here, ICANN very much made a decision to refuse TLD status to .xxx on a moral
basis, a decision that was eventually reviewed and found incorrect.38 Positivism
however, it was not.

Have we seen a postmodern version of governance making?

This is not easy to determine. The problem is postmodern think itself. I am not
surprised that it has been described variously as ‘more kitschy than monstrous, so

33
Ibid 328.
34
Australian Democrats, Wikipedia <http://en.wikipedia.org/wiki/Australian_Democrats> (accessed 20
Sept 2010).
35
Konstantinos Komaitis,’Aristotle, Europe and Internet Governance’ (2008) Pacific McGeorge Global
Business & Development Law Journal 21, 1.
36
ICM v ICANN (2008); ICDR Case No. 50 117 T 00224 08.
37
Emily Wilsdon ‘Regulating the Root: The Role of ICANN as Regulator, and Accountability’
<http://ssrn.com/abstract=1632885> (accessed 20 Sept 2010); Cheryl B. Preston, Brent A. Little,
‘ICANN Can: Contracts and Porn Sites - Choosing “to Play Internet Ball in American Cyberspace”’,
(2008) Pacific McGeorge Global Business & Development Law Journal, 21, 79.
38
Rod Beckstrom (President, ICANN), ‘Landmark Step in ICANN’s Use of Accountability Mechanisms’,
<http://blog.icann.org/2010/02/landmark-step-in-icanns-use-of-accountability-mechanisms/> (accessed
30 Sept 2010).
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 Robert Di Nicolantonio

distressing to its critics’ or that it is an ‘overripe bouillabaisse’39 or ‘vacuous

academic posturing’.40

And Stephen Feldman is quoted as saying that;

The most obvious problem with the various criticisms of

postmodernism is the wild inconsistency. How can a theory or
jurisprudential approach that is bereft of meaningful content
undermine the western legal system? How can a movement that
is already over and done lead to political quiescence? In fact,
why bother criticizing postmodernism if it is already a joke?41

Clearly, to provoke such comments the stakes must be high. Indeed they are; the
legal foundation of society is being threatened.

But, other legal commentators are far more accepting of postmodern concepts,42 as
am I.

Recall that postmodernism is suspicious of ‘truth’, ‘rationality’ and accepting

anything produced with the language games we play.43 There is no ‘empirical
content within a statement’, and ‘Sentence-Truth-World’ is to be replaced with
‘Practice-Warranted Assertability-Pragmatism’.44 The ‘world’ no longer ‘fixes a
reference point for our concepts’.45 And also, statements about events (or laws) are
no longer viewed as objective and true, but rather, they represent an ‘antecedent
choice of response to a given stimuli’.46

In short, reality no longer comes pre-packaged.

But isn’t this what we see in the argy-bargy surrounding ICANN and internet
governance, namely;

39
Reza Dibadj, ‘Postmodernism, Representation, Law’ (2009) University of San Francisco School of Law
Research Paper, No. 2009-03.
40
Thomas Mautner, Dictionary of Philosophy, (Penguin, 1999) 439.
41
Stephen M. Feldman, ‘An arrow to the heart: The love and death of postmodern legal scholarship’,
(2000) Vanderbilt Law Review 54, 2351.
42
Bryan Druzin, ‘Finding Footing in a Postmodern Conception of law’, Bocconi School of Law Student-
Edited Paper No. 2010-13/EN, <http://ssrn.com/abstract=1560605> (accessed 20 Sept 2010).
43
Gary Aylesworth, ‘Postmodernism’, The Stanford Encyclopedia of Philosophy (Winter 2009 Edition),
Edward N. Zalta (ed.), <http://plato.stanford.edu/archives/win2009/entries/postmodernism/> (accessed
20 Sept 2010).
44
Dennis Patterson, ‘From postmodernism to law and truth’, (2003) Harvard Journal of Law & Public
Policy 26, 49.
45
Ibid.
46
Ibid.
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• Suspicion of motives.
• Lack of acceptance of traditional world order.
• Almost complete scepticism about the ‘text’.
• Doubt about meanings of words and the use of language games.

Indeed, the internet itself has been called post-modern!47

In my view, even admitting that these questioning stances are not unique to
postmodernism, the shadow of postmodernism has in fact been cast on
proceedings, and perhaps for the better. It is not hard to imagine that if the US (or a
Microsoft-type company) had invented the WWW 50 years ago, then the US would
now own it outright. But in a postmodern world, the default position is to view
statements such as ‘America is the greatest’ or ‘the US is the leader of the free
world’ with deep suspicion.48

But, leaving aside such questions, the practical question remains; how will or should
the internet be governed?

Back to the Real World – Internet Governance.

The DNS is critical to business interests, as well as scholarship, security, social

networks and general communication. Given this impact on just about all spheres of
community life, how the internet operates becomes an important policy discussion.
The media coverage of the Australian Government’s roll out of the so-called super
fast National Broadband Network is a salient – and timely – reminder of this.49

A major focus of discussion about internet governance is the fair distribution of

commercial advantage. Also important is internet speed, its platform neutrality,
software neutrality and censorship. Given all this, it is not surprising that internet
governance has, almost since creation of the WWW, been carefully watched.50

A number of critical features for internet governance have been proposed and these
include;

47
Christopher Butler, Postmodernism: A Very Short Introduction (Oxford Paperbacks 2002).
48
And statements which, according to Derrida, must be ‘deconstructed’; Richard Appignanesi and Chris
Garratt, Introducing Postmodernism: A Graphic Guide (Totem Books, 2007), 79.
49
New National Broadband Network, Media Release, Australian Government
<http://www.minister.dbcde.gov.au/media/media_releases/2009/022> (accessed 20 Sept 2010) ; But
see; Malcolm Turnbull MHR, ‘Holding Labour to Account on Broadband’, Media Release
<http://www.malcolmturnbull.com.au/media/holding-labor-to-account-on-broadband/> (accessed 20
Sept 2010).
50
See for example ICANNWatch; <http://icannwatch.org/> (accessed 20 Sept 2010).
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• Recognition of the internet as a ‘global commons’ for which there should be

free adoption and open and non-proprietary standards.
• Decentralized governance.
• Support of the end-to-end principle.
• A data transportation only, neutral platform.
• Moral neutrality.
• Multistakeholder, ‘bottom-up’ model.
• Resolution of bottlenecks without political interference.
• Impartial dispute resolution.
• Judicial review of decisions.
• Intergovernmental supervision & accountability51

And all this within 10 years?

Here I think many in the community are too impatient. Internet governance is a
difficult problem which cannot be resolved quickly, especially given that – in my
opinion – the internet arose only through US investment. I think that the US does
have a special call on the fruits of the internet, and that this be recognized, at least
in the short-term, rather than be decried as often as possible.

Therefore, I believe that while pressure should continue to be brought to bear on

ICANN on important transparency and accountability issues, ICANN bashing should
cease to be an international sport.

But, perhaps we should give the final word to the postmodernists?

They would hold that we are in fact ‘working without rules in order to find out the
rules of what you we’ve done’.52 In other words, we will know the best model of
internet governance, and its features, after we have created it! To think that we
know this before obtaining it is, according to the postmodernists, self-deception.

Brave new world indeed!

END

51
See variously; Slavka Antonova, ‘Globel Internet Governance: Negotiating Power in ICANN’,
Communications, Civics, Industry – ANZCA2007 Conference Proceedings
<http://www.latrobe.edu.au/ANZCA2007/proceedings/Antonova.pdf> (accessed 20 Sept 2010); Jeremy
Malcolm, ‘The Space Law Analogy to Internet Governance’, (2007) Journal of Law, Information and
Science 18, 57; Rolf H. Weber, ‘Accountability in Internet Governance’, (Winter, 2009) International
Journal of Communications Law & Policy 14, 152.
52
Richard Appignanesi and Chris Garratt, Introducing Postmodernism: A Graphic Guide (Totem Books,
2007) 50.
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BIBLIOGRAPHY

Books

Richard Appignanesi and Chris Garratt, Introducing Postmodernism: A Graphic

Guide (Totem Books, 2007).

Christopher Butler, Postmodernism: A Very Short Introduction (Oxford Paperbacks

2002).

Marett Leiboff and Mark Thomas, Legal Theories in Principle (Thomson Law Book
Co., 2004).

Thomas Mautner, Dictionary of Philosophy, (Penguin, 1999).

Articles

Slavka Antonova, ‘Globel Internet Governance: Negotiating Power in ICANN’,

Communications, Civics, Industry – ANZCA2007 Conference Proceedings
<http://www.latrobe.edu.au/ANZCA2007/proceedings/Antonova.pdf> (accessed 20
Sept 2010

Aristotle, Wikipedia <http://en.wikipedia.org/wiki/Aristotle> (accessed 20 Sept

2010);

Australian Democrats, Wikipedia

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 Robert Di Nicolantonio

FIGURE 1: History of Internet Development 1950 – 1990.

1990; US
Department of
Defence stops
Special project comes funding for
out of the 1958 ARPANET.
Funding continues
Eisenhower 1984; ICCB from National
administration’s transformed into Science
Advanced Research In 1969 four US Internet Foundation while
Project Agency computers were Advisory Board legal responsibility
(ARPA) directed at successfully and then soon shifts to
network security (via after into the Department of
linked such that Commerce
multiple redundancies) communications Internet
during nuclear attack. (DOC).
could occur Activities
between them. Board.

SEE
1950196019701980199020002010 ktujhtyjhj 20201020000 NEXT
PAGE

In 1974 two
researchers 1988; in response to
In 1968 ARPANet (Vint Cerf & Bob concerns of the US
emerges as a Kahn) develop government about
device for load TCP/IP paving internet security of
sharing among way for internet core
multiple, large widespread resources, Jon
computers, in the Postel creates
‘network of
Internet Assigned
absence of a networks’ Numbers Authority
central node. (IANA) being
himself!

17
 Robert Di Nicolantonio
FIGURE 2: History of Internet Development 1990 – 2010. Tunis meting
ALM reconfigured so that sees
there were direct elections
and morphed into At establishment of
Large Advisory Comm. A IGF under UN
Virulent objection Magaziner seeks to new Nominating
from private Committee (NomCom)
auspices.
Tim company Network
placate EU – proposes
was created and given
Berners- Solutions Inc NewCo – comprising mandate to select half of
Lee (NSI) US/EU/Asian rep’s. ICANN board members. ICANN
invents White paper DOC asserts enters
the World Postel US Govt released by US interests in agreements
proposes that intervenes US Govt. internet, but with
Wide Web. ISOC to stop also legitimate ccTLD
Spurs introduce 150 Postel. Bush
NewCo sovereignty of managers
Postel to new TLDs elected
becomes other nations re – ALM
enlarge and Twin enlarged
ICANN Towers ccTLD. Asserts
DNS. Postel Anxiety
ICANN as with other
forms the under attacked expressed by
“Interim Ad Postel. manager of key countries.
1994;
Hoc – internet non-US
establishment deemed infrastructure.
Committee countries (esp
of ccTLD
managers
” (IAHC). ‘Critical China) re US
UN invited infrastru control of New DOC-ICANN
to join.
Postel cture’. core internet MoU
dies
resources. & “affirmation
199020002010

ICANN
signs Clinton
RFC, Root
Server System, MoU promises
DNS, TLD
1997; MoU signed by Clinton with ICANN
IAHC parties. Policy
under Jon Oversight Committee releases DOC independence.
Postel Further ICANN –
(POC) formed and Green DOC
advised by Policy
Paper – agitation by EU
Advisory Committee – US resists agreement
(PAC). Included seeks to sees new
Internet Society (INSOC) private sector call for UN-
formed. privatize type Joint
members and newly Tension
formed Council or DNS. governance of Project
Registrars. between Lessening
internet. Bush Agreement of tension
ICANN and
meets with EU & greater
ccTLD between
Internet President &
Madelaine managers Rice with
promised ICANN and
Architecture Board
(IAB), Internet Allbright many of British independen GAC.
Engineering Task whom Foreign ce from US
castigates
Force (IEFT) & International followed Secretary. Govt.
Internet Research parties for
anxiety their national
Task Force (IRTF) signing
created. mounts re US jurisdiction.
MoU.
control of
internet. 18
 Robert Di Nicolantonio

1950 1960 1970 1980 1990 2000 2010

US Dept of Defence funds internet development.

Early "Governance" Measures;

ICCB (IAB), DARPA & IANA.

WWW Invented &

Enormous Commercial
Potential Recognized.

Power Struggle
Between Developers,
Private Company &
Government; Govt
wins; Privatization
starts.

ICANN
created
Figure 3: Major social, governmental and commercial forces
Failed attempt at
at work during the development of the internet. on-line democracy.

International Tension
Over Who Controls
Internet - US
Resistance to UN
Control

ICANN Continues to evolve with

continuing criticism about its
objectivity in decision making
process.
19