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Governance and the ILPF

Internet governance, to the extent that one can talk of governance of this cooperative, decentralized venture, is fracturing. The debate about Network Solutions handling of the domain name process has grown quite bitter. There are some who want to open their own DNS businesses to break the NSI "monopoly." The IANA (Jon Postel) has put forward an internet draft calling for the IANA under the umbrella of ISOC to charter multiple international top level domain name services. Tony Rutkowski, the former Executive Director of the Internet Society, has attacked ISOC and the Postel draft for conflict of interest. At the same time that he was doing this (during the first half of July) Rutkowski was also the most active spokesman on the net on behalf of a strange new organization called the Internet Law and Policy Forum, (ILPF). This group first announced itself to the world at large in an April 1995 memo written by Peter Harter. There Harter wrote that the Internet Law Task Force (since January 96, the ILPF) would seek to emulate the IETF and write the running legal code for the Internet. To complicate the domain name mess, the ILPF has very recently announced that it will undertake, on behalf of the Internet community it purports to serve, its own effort to solve the domain name problem - a global notice of inquiry that it will begin this fall and complete by January 1, 1997.

Now we acknowledge there are pressing and serious legal issues that an Internet legal association (properly constructed) could benefit the Internet community by addressing. However we consider the ILPF strange and perhaps even ominous for the following reasons: (1) It is a new kind of organization that seems to be held together by a loose group of people who speak publicly on its behalf from time to time. It has as yet, no formally adopted charter, statutes of incorporation, by-laws or announced members. In short, no accountability structure. Yet people appear on its behalf at information superhighway meetings in foreign countries and talk about it in front of such entities as G7 and the Global Information Infrastructure Commission in terms where the uninitiated could mistake it as the entity- fully formed, operational, and - designated by the Internet community to make legal policy on its behalf. (2) Strange because when its backers have been asked why it was proceeding on behalf of the Internet community without having its real support, the answer has been that the support of the community really didn't matter because, the private sector was moving ahead without it in forums such as GIIC, OECD, WIPO, G7, and at the White House under an Ira Magaziner led task force. (3) And finally strange because while it is still nascent and therefore without a track record, it does have documents on the web that have enabled us to put together the following comparison of the processes that this group of lawyers is talking about bringing to the internet community. We believe that the community had better watch the ILPF very closely since the ILPF is putting forth a governance model that is essentially closed and likely to be controlled by the largest corporations on the net. We believe it to be a model entirely contrary to the standards on which the Internet was built.

PROCESS COMPARISON

The ILPF is not yet fully operable and therefore has no track record by which it can be judged. In the absence of such it may be instructive to evaluate some very strong differences in the way that it and the IETF on behalf of the Internet community are designed to operate from a process point of view. The differences are huge. (**Note**: when we summarize the IETF Process we shall use there the term lawyer alongside of "engineer." Quoted passages come from Executive Summary and Organiztional Structure sections of the ILPF web pages at http://www.discovery.org/iltf.html).

The Common Perceived Need:

An Association for Internet Law to develop policy papers, proposed legal codes or legislation. To give consistent legal interpretation of Internet needs in issues such as content and security to nations around the world.

Organization

The IETF Process: Open to all individuals. Currently no membership charges. Perhaps in the future there will be sliding scales for membership charges which are designed to support a secretariat that coordinates and helps publicize the efforts of the working groups. With member companies volunteering the time of attorneys (engineers) in return for the benefits to the commercial development of the internet that accrue from successful handling of legal issues. Since the IETF Secretariat is paid for with government money currently, what we have written here, we see as a desirable future state for the the organization.

The ILPF Process: "Members shall be representatives of corporate sponsors. Sponsors shall purchase and own a "seat" for an initial three year term. Additional three year terms may be renewed [Editor: in a way that is unspecified, one wonders if a member or members can choose to renew themselves in perpetuity], or may be transferred, upon terms defined by the Forum." Of course the Forum is the people already at the table -- a process that yields a completely closed system" Seats will be limited to between 30 and 45 in number for all aspects of the Internet and its technologies for all companies in all nations of the world.

Working Groups

The IETF Process: Working groups may be suggested by anyone. Draft charters are publicly debated. IESG, a small body of senior lawyers (engineers) chosen by consensus, grants or withholds final approval for a working group charter.

The ILPF Process: Each of the 30 to 45 members of the Forum is entitled to sponsor a working group of its own choosing, in return for the its original purchase of its forum seat. The 30 to 45 members consider and approve the charters of Working Groups, and the related terms of reference, budgets and operating rules. Each working group to be co chaired by a legal and technical expert paid fully for his or her time.

The Working Group Process

The IETF Process: Open working groups, policies and procedures where any lawyers (engineers) can place on the table their proposed solutions for the entire Internet community to judge. Companies to whom solutions are important underwrite the time of the attorneys (engineers) involved. Face to face meetings of working groups three times a year. Use of network discussion lists and web pages in the meantime. Final work is alway done on mail lists.

The ILPF Process: Sponsors are the forum members or may be an outside customer -- if the forum members approve. The working groups are never told the source of their funding or the identity of the company commissioning their work. The product of a working group is purchased by its sponsor. The group is controlled from the top down and is designed to deliver the product with maximum speed.

Scope

The IETF Process: designed to have widest possible scope and ensure the interoperability of all networks large and small.

The ILPF Process: will unusually have wide scope. However there is nothing to prevent a working group being used as the hired gun to find a solution to the problem of one large and powerful member only.

Accountability

The IETF Process: Accountable to the Internet community through an open process with known channels of authority and public review of documents at regular intervals.

The ILPF Process: as yet no officers, no formal governing bodies, no statute of incorporation or by laws. Accountable to ideas floated by a loose coalition of individuals on behalf of a development group of 24 members, the identities of which are unknown. Working group products are approved by the forum members alone - presumably in closed session. When the product is announced to the world, there appear to be no requirements for the disclosure of the sponsor of the criteria by which it was developed. "The source of funding and the proposer(s) of the project will be confidential in order to ensure the integrity of the final product."

Speed of Process

The IETF Process: Often somewhat slow because of its consensual nature but usually faster than any other standards organization. It has a long term orientation for the good of the community - the goal of sustainability for the long haul.

The ILPF Process: Emphasis on speed. On the delivery of a useful product in the shortest period of time. "Objective, impartial, unimpeachable solutions and recommendations within short, defined time frames." In others words a short term perspective as defined by the values of the corporations and their responsibility to their bottom line.

Criteria of Success

The IETF Process: The respect and acceptance of other attorneys who participate in the process. Solving in a consensual, collegial way legal problems openly debated and consensually agreed to as important to all members to the community.

The ILPF Process: The criteria of success of the product is solely defined as its acceptance in the marketplace. Precisely what this means is never explained.

Role of Money

The IETF Process: Largely a volunteer effort openly supported by a large range of players.

The ILPF Process: Paid for entirely by the individual sponsor, in front of a small group of people, and accountable to its sponsors and not to any public entity.

They could have organized it much differently but did not. Why? They could have organized along the lines of the Internet process but did not. It seems to us that what they have done is to exclude members of the Internet community and abandon any consensual process.

Conclusion

We devote this entire issue (30 pages instead of the normal 24) to the governance crisis and the ILPF. We start with an introduction and context setting for the people and issues. We next offer a long running summary of discussions from the new domain and internet law task force mail lists. We go on to a debate between us and Al Gidari, Senior Fellow , Discovery Institute and co- founder of the ILPF. We follow with an interview with Jeff Ritter another ILPF co-founder. We conclude with thoughts on the Future of Internet Governance. Side Bars: Our Agenda - Why We Are Worried by the ILPF; The Magaziner Task Force -- To Whom Do Clinton and Gore Deliver the Internet?; Draft Charter Internet Domain Name and IP Address Registration Proceeding; IETF Source Critques ILPF Executive Summary; Four Prominent Members of the Internet Community Speak Out on Governance Issues.

In September's issue we shall present interviews with Don Heath, the new ISOC CEO, and Dave Farber, an ISOC trustee.