A blog on why norms matter online

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I'm a Post-Doc Fellow at the Cluster of Excellence "Normative Orders" of the University of Frankfurt and lecturer at the Institute of International Law of the University of Graz, Austria. I've studied international law in Graz, Geneva and at Harvard Law School. I enjoy thinking and writing about Internet Governance and discussing and shaping the future of the Internet

Tuesday, August 21, 2012

As China calls for US to hand over "Internet control to the world", the world should call on Mr. Hu to tear down the Great Firewall

U.S. Secretary of State Hillary Rodham Clinton delivers remarks
at the Opening Session of the U.S.-China Strategic and
Economic Dialogue (May 9, 2011).
[State Department photo/ Public Domain]
It is difficult to hand over something (or someone) you don't really have in your power. 

The British cannot hand over Assange to the Swedish authorities because he is in the Ecuadorian embassy (which they will not, contrary to some wrong interpretations of a diplomatically unwisely worded letter) not attack.

Similarly, when China's English-speaking People's Daily Online told the US in a 18 August 2012 to "hand over Internet control to the world", the US could not really have done so. 

And wouldn't have wanted to (See the recent bill is US Congress confirming the "unequivocal policy of the United States to promote a global Internet free from government control and preserve and advance the multistakeholder model that governs the Internet today. ".) 

And shouldn't have wanted to.

What's at the core of the issue?

In a recent article, Rebecca MacKinnon who as CNN's former Beijing bureau chief truly understands the multiple dimensions of Chinese Internet (and media) policy provides an excellent review of the relationship of the US, the UN and the Internet, entitled "The United Nations and the Internet: It's Complicated" She sees a "battle [to be] brewing", but not one that should see any structural changes to happen.

Some governments, such as Russia and China, have been trying to argue for more control over the Internet for years and have raised questions of legitimacy of ICANN, historically an important actor, that regulates the domain name system and has some responsibility, under the recently prolonged so-called IANA functions, for the management of the way these addresses are saved on the root servers. 

Now, since domain names are words and are thus a good that knows (apart from some public policy-based exceptions) only artificial limits (those introduced by ICANN in the first place), one can questions the legitimacy of artificially making the market for domain names smaller and for introducing high entry fees (for new gTLDs, however). This is a point Milton L. Mueller makes it his 2002 book Ruling the Root (which is still very readable). But ICANN - by and large - works, and so does the domain name system.

Of course, the system is dominated by a US entity. This does not make China happy. But what are the  main points that the recent article in China People's Daily article makes? 

  • The Internet is increasingly important, but "governance mechanism for such an important international resource is still dominated by a private sector organization and a single country." (True, but the Internet is not worse off for it.)
  • The US retains "ultimate control over the global Internet, which enabled it to unilaterally close the Internet of another country. A suddenly paralyzed Internet would definitely cause huge social and economic losses to the country." (Theoretically true, but completely implausible.)
  • "The United States controls and owns all cyberspaces in the world, and other countries can only lease Internet addresses and domain names from the United States, leading to the U.S. hegemonic monopoly over the world’s Internet." (The US doesn't own "all cyberspaces in the world". There aren't different cyberspaces. What the article means is that ICANN regulates the attribution of domain names. Again, it's not quite the US, but a US-based company. The US DOC has exercised is supervisory function rather carefully in the past and has comitted to keeping the Internet open and multistakeholder-based. Just see the Obama/H. Clinton doctrine on Internet freedom.)
  • "The United States has taken advantage of its controlover the Internet to launch an invisible war against disobedient countries and to intimidate and threaten other countries." (Not true.)
  • "Ultimate control over the Internet has been an important tool for the United States to promote its power politics and hegemony worldwide, and any other country may fall victim to this." (Again, the US doesn't actually exercise ultimate control over the Internet. If it did, then China wouldn't be able to censor the web so effectively.)
  • "As a big country on the Internet, China opposes the U.S. unreasonable and unilateral management of the Internet, and seeks to work with the international community to build a new international Internet governance system." (The US has not behaved unreasonably  in the past. As is evident from China and Russia's proposal for an Internatioal Code of Conduct for Information Security, China's idea of an "international Internet governance system" would be one where countries would agree, per para. 3 of the Code, to cooperate to curb the dissemination of information undermining "other countries' political, economic and social stability, as well as their spiritual and cultural environment." Hello, censorship.
Summing up: some criticism is valid, but there is no better, more legitimate and more stable alternative than the current system. Most of the criticism, however, is politically motivated. 

As Internet architecture expert Wolfgang Kleinwächter pointed out there are now more than 150 anycast root server which makes the root server system much more reliable and have greatly reduced what the article calls the US hegemony. 

Importantly, there has also been a "moment of truth" as far as the control of the US government regarding publication of TLD zone files is concerned: the .xxx case. The US goverment was opposed to the publication and could have - theoretically - stopped it. But they didn't. (Read this interesting paper on policy issues regarding Internet domain names for Congress by Lennard G. Kruger of the Congressional Research Service for background information.). 

ICANN will never and can never meet the legitimacy requirements of a nation state. Because it is no nation state it shouldn't have to. Its role in Internet Governance can be legitimated through other avenues of legitimacy, including input, throughput and output legitimacy. 


Rather calling for an "internationalization" of DNS and root server management, we should use a functional approach that first asks what exactly the function of the regime needs to be (ensuring Internet integrity, stability and functionality in a process coherenent with (and outputs consoncant with) the Internet's core values, including the protection of human rights). How this functional approach can be applied to Internet Governance, is a topic that I'm broaching in my book The Future of Indivdiuals in International Law. Lessons from International Internet Law, which will be published later this year by Eleven International (Utrecht).

Internationalization is not always good. A treaty on DNS issues is not always the best option. Trust, accountability, rational legitimacy and distributed decentralized de facto control can serve just as well.


There's just one important exception when international oversight is really need. And China won't like it. 

It is the issue of human rights on the Internet (I have written extensively on the protection of human rights on the Internet before, on my blog [hereherehere] and in other media and forums [EJIL Talk!"Die Presse",jusPortal.at] and have lauded the Human Rights Council for making the significant step of conformign the technological neutrality of human rights protection regimes in the easy to remember phrase that "the same rights that people have offline must also be protected online")

 MacKinnon's article in Foreign Policy makes this point very clearly. Though we shouldn't 'hand over' control for the Internet to the UN, we should further internationalize human rights protection. 


MacKinnon  writes:

"Here's where the United Nations is actually useful. While it is clearly the wrong organization to coordinate Internet standards and regulations, the world body has played an essential function in establishing a human rights framework for Internet policymaking on a global scale. Thanks in no small part to U.N. human rights-focused institutions, a global consensus is growing that the Internet's development must be grounded in the principles enshrined in a set of global human rights agreements, including the Universal Declaration of Human Rights and its two associated covenants."


But China's position is ambiguous.

They don't actually want Internet governance to be internationalized, but rather nationalized. The UN, where China has a voice (and the Security Council where it has veto powers) are only means to the end of increasing control. 


Calling for an end to US control does not actually mean that it is Chineses policy to accept international standards on Intenret regulation. Otherwise, they would have long ago accepted global human rights standards. The Great Firewall of China tells a different story.

This is, in face a litmus test for the regime.

Rather than calling on the "US [to] hand over Internet control to the world" what Chinese media should call for is for "China [to] hand over Internet control to its people."

If they do that, then we can talk about internationalization.


So here's my call: Mr. Hu, tear down this Firewall. 

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