Introduction
Since the end of the cold war, political liberalization and technological change have fostered the emergence and greater articulation of organizations representing what has come to be called "civil society". I define "civil society" in the most general sense as that specific space in the public sphere in which self-organized groups, movements and individuals, relatively autonomous vis-à-vis governments, attempt to articulate values, create solidarity and promote their interests. For the sake of clarity, I explicitly exclude any business-related or for-profit interest groups or organizations from this working definition.
The growth of national and transnational organizations of civil society has been especially important in increasing pressure on public institutions–states and international organizations alike–to open up and create new venues for access and political participation . Policymakers can no longer afford to simply bypass civil society whose aggregated concerns and needs in a fast-changing and increasingly complex environment might be often different from what has traditionally been recognized as the public interest in the territorially bound context of the nation-state.
This leads me to my argument that civil society should be granted a well-defined and distinct role in the regime of global Internet governance. Unfortunately, this has not been the case so far. Technical decisions for a global infrastructure have socioeconomic and political consequences and turn basically everyone into a stakeholder. In this context, I would like to remind you of the many trademark disputes between well-established multinational corporations and individual domain name holders. Or think about the increasing pressure on the Internet Corporation for Assigned Names and Numbers (ICANN) to broaden its agenda on when the issue of taxation reappears on the to-do-list. Therefore, new and innovative transmission mechanisms by which the interests of scattered civil society stakeholders can be consolidated and fed into the global policy-making process are required. This would not only increase the legitimacy of a global gatekeeper such as ICANN but would also increase the long-term effectiveness and sustainability of the emerging governance system.
In the remaining of my speech, I will elaborate on a critical and somewhat provocative assessment of the process that led to the formation of ICANN. My aim is to derive some general conclusions from this evaluation, which could lay the basis for the following discussion. My presentation is organized along three points: First, the U.S.-government (USG) did not have a clear - let alone encompassing - vision for the emerging Domain Name System (DNS) regime when it took the initiative back in 1997, but pragmatically concentrated on solving the most pressing issues. Second, the Clinton administration's limited focus on the long-term consequences of its policy recommendations resulted in a severe participatory gap with respect to the inclusion of foreign governments and the broader civil society in the institution building process. Finally, the efficiency imperative embodied in the rhetoric of "private sector self-regulation" gave well-organized material interests a head start in establishing the structures of the evolving Internet governance regime at the disadvantage of dispersed civil society members.
1. The agenda setting phase
There is no doubt that many different forces were at work which encouraged or even pressured the U.S.-government (USG) to formally step in the intensifying debate about the reform of the DNS in 1997 . To be sure, the administration had already been working on its own plans to end its involvement in the management of the Internet infrastructure by that time. But it seems fair to argue that the emergence of rival proposals for a new Internet governance system represented a major incentive for straight governmental intervention. Under the most successful and credible of the alternative proposals, the International Ad Hoc Committee's (IAHC) generic Top Level Domain-Memorandum of Understanding (gTLD-MoU) for instance, the USG would have suffered a severe reduction of its direct influence over the future development of the Internet. Subsequently, the USG launched a powerful initiative to re-gain the first-mover advantage in the field. This was partly done in response to some heavy lobbying efforts by the U.S.-private sector, partly in an attempt to secure continued U.S.-control over the A-root. The resulting policy proposal for the complete privatization of the DNS-administration, the Green Paper , widely reflected the objective of the USG to get back in front of the steering wheel. First, it practically killed the competing IAHC-movement by not even mentioning the latter with a word in its own blueprint. Second, by declaring the principles of efficiency and effectiveness as the primary benchmarks for the future DNS-regime, the USG successfully framed the ensuing policy discourse along its own institutional preferences for neo-liberal, minimalist regulation. To emphasize their argument that unfettered private sector leadership was indeed the best way forward, the policy-makers just needed to point at the well-functioning, albeit informal system of Internet self-regulation that had already been in place for years . The U.S.-private sector, which held an undisputed lead in terms of its know-how and adoption of new information technologies, naturally welcomed the liberalizing proposal. To summarize, the Green Paper represented a markedly U.S.-centered approach to the reform of the DNS that was largely based on domestic decision-making procedures and consciously circumvented established multilateral forums. This moment of "unilateral globalism", to borrow a term coined by Samuel Huntington in a recent article in Foreign Affairs , imposed a fairly technocratic view of Internet governance on the emerging system. It is not surprising that the awareness of the developments was primarily confined to technical expert groups and some material interests, who were best informed about the issues at stake. Apart from a few civil society representatives in the United States such as Computer Professionals with Social Responsibility (CPSR) or the Center for Democracy and Technology (CDT), the topic mainly escaped the attention of the wider public. This was true for the American public but was even more the case for the rest of the world. From an ex-post perspective, one can easily argue that it would have been necessary to initiate and support a broader-based dialogue among the USG and relevant non-state actors as early as the agenda setting phase. This would have laid the basis for a better-defined consensus with regard to the road ahead and might have contributed to a more inclusive and procedurally fair process right from the beginning. However, it is also clear that this would have substantially delayed the operation - something, which had been regarded as simply unpractical at that stage.
2. The policy formulation phase
The parameters established in the Green Paper burdened the following process with a severe participatory gap. Many private sector interests and public authorities from outside the U.S. were surprised by the lightheartedness with which the USG unilaterally asserted its authority over the Internet's core technical resources. Even though the Clinton administration had signaled that it was willing to listen to other government's interests, European, Australian and Japanese policymakers fiercely objected that their specific interests and traditions had been sufficiently taken into account. Hence, it had become apparent at latest at this stage that Internet governance represented not merely a technical problem but was also intertwined with political, social and economic norms and values. The most hotly disputed issues have centered on the deeply rooted disagreement between the United States and European governments on how far one should rely on industry-self regulation instead of public oversight. After an intense round of negotiations and some tactical maneuvers, the USG and the European Commission finally reached agreement on a framework within which the private sector would be allowed to self-organize. As expressed in the White Paper , the European Commission and its allies succeeded in attaining some considerable concessions from the USG in as far as international representation of the private sector, the involvement of international public authorities and the protection of trademarks was concerned . What we got here in the end, represented a system of Internet governance that was politically efficient in the first place as it dealt with the various concerns raised by governments. But it was certainly no longer economically efficient in the sense as the USG had envisioned in its original proposal. However, I want to argue here that while European public authorities have been quite successful in influencing the institution building process of ICANN, the particular needs and concerns of civil society have not received the attention they deserve. The rationale for this line of reasoning is twofold: First, the driving force behind the European approach to the DNS-issue has been the European Commission. Or it would be probably more correct to say: One specific official from within the Commission. The Commission enjoyed far-reaching independence and autonomy from European Union (EU) member states in framing its course of action during the policy formulation phase, as most European governments have simply not been fully aware of the process, let alone its potential implications. It is well worth mentioning here, that the French government, together with the French chapter of the Internet Society, has probably been one of the most active and determined European actors in this respect. It can be stated that the Commission had its own, distinct interests with respect to the governance of the Internet. These interests are probably best described as internal market considerations, balanced international political relationships in Internet policy and the closing of the European lag with respect to advanced Internet infrastructure. Surprisingly enough, the Commission's proposal for a new .EU-TLD can be interpreted as fitting quite well into this preference ordering. The second point that hampered institutional access of civil society in Europe was the nearly complete domination of the Panel of Participants (POP) by material interests. The Commission had created the POP as a forum for European stakeholders in the field to present their specific concerns to the DG-XIII and to discuss further actions. Representatives of civil society interests have only attended the most recent meetings. To conclude this part, I would like to emphasize that the concerns of civil society did not effectively find their way into the European Union’s headquarter, which has been predominantly busy safeguarding its own and the private sector's economic, political and strategic interests vis-à-vis the USG.
3. The policy implementation phase
The rhetoric of "private sector self-regulation" allowed small groups with concentrated interests and low organizational costs to dominate the institution building process of ICANN at the expense of large groups with diffused interests and high organizational costs, such as civil society. This can be portrayed as a classic example of regulatory capture as George Stigler first described this phenomenon in the 1970s. For instance, the trademark owners, the backbone providers and the epistemic community of Internet veterans had already operated on a transitional level for years and had a fair deal of experience in coordinating their efforts. Network Solutions Incorporated (NSI), the incumbent domain registry, had very much to lose in the ICANN process but possessed enough financial strength to launch targeted lobbying campaigns. Hence, material interests were well equipped to gain enough influence over the ICANN-process to ensure that their specific concerns and needs were preferably addressed by the body's rulings. Of course, the material interests gave only minor thought to how civil society participants could be included at a later stage, a fact which can be considered to be a partial explanation for the currently prevailing helplessness regarding the at-large membership. On the other hand, civil society interests in this field lacked the financial clout as well as the established ties that would have allowed them to collaborate in an effective manner. An additional impediment to a concerted effort - and probably also the most important - was that only a minor part of civil society was truly aware of the proceedings. This is, by the way, something, which held true during all phases of the described policy cycle. This rampant information deficit, however, does not mean that civil society does not have an interest in participating in the reform-process if it only would have been equipped with the relevant knowledge.
4. Conclusion
Civil society (or at least those parts of civil society, which knew what was actually going on) has been clearly disadvantaged in the agenda setting, the policy formation and policy implementation phase of the ICANN process. Nevertheless, there are some encouraging indications that awareness of the emerging Internet governance regime and its potential implications for civil society is on the rise. In the United States, consumer representatives and non-profit interest groups are beginning to demand a greater say in this domain. So far, Common Cause, the CPSR and the CDT have been particularly active and successful in this respect. In Europe, on the other hand, the Bertelsmann foundation is currently working on a project that aims at increasing civil sensibility for the upcoming at-large membership elections. The Bertelsmann initiative faces a much more daunting task than its U.S.-counterparts, though, since civil society per se is a fairly underdeveloped concept in Europe. People here in Europe are still accustomed to align themselves with a political party or association to express views and influence outcomes. However, as the declining membership of political parties all over Europe demonstrates, frustration with traditional means of public expression is increasing. Finally, there are currently no channels available that would allow a more self-confident civil society to collaborate on a transnational or even worldwide basis. As I have mentioned in the introduction, civil society operations in other areas (e.g. human rights) have taught the public sector a lesson on this score: By relying on horizontal and flat organizational structures rather than on traditional hierarchies, they have gained considerable influence relative to governments and intergovernmental organizations . In this respect, the TIES-web could well serve as a promising starting point by providing civil society interests with a forum that would allow them - at a later stage - to truly independently collaborate with business and public authorities in global public policy decisions such as the reform of the DNS.
References
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