Substance or Process?

Information Government’s Lessons for Internet Governance

Viktor Mayer-Schönberger
Information & Innovation Policy Research Center
LKY School of Public Policy, National University of Singapore

(Early) DRAFT – Comments Welcome!

Frequently discussions over the procedural and institutional framework for Internet
governance resemble voyages into the great unknown, as if Internet governance is a topic
so novel that other fields can offer no insights on how to proceed. Of course, Internet
governance is a complex task, taking into account not just the global dimension of the
phenomenon (and with it diverging values across numerous nations), but also its topology
resting on a network without clearly defined control bottlenecks that enable governance
enforcement.

And yet, the Internet is not the only phenomenon with these characteristics. Other areas
of governance are similarly experiencing shifts and reconfigurations, for example when
governance is extended across well established organizational borders, and supposed to
cope with a much broader set of actors defining rules and effecting compliance. Tapping
into the conceptual and empirical work that has gone on in these areas may facilitate the
effective build up of Internet governance structures, as well as help us understand what
such structures can and cannot possibly achieve.

This paper aims at contributing to this cross-disciplinary debate by laying out theoretical
and empirical lessons from the field of e-participation that may offer insights for what
Internet governance structures and processes can hope to achieve.

In the first part of the paper I map out how theoretical frameworks linking participation
of the governed to governance challenges of legitimacy are similar in nature to those
faced by Internet governance. Further I show how attempts to improve democratic
participation in advanced democracies through technologies of inclusion and

Electronic copy available at: http://ssrn.com/abstract=2798397

transparency resemble similar measures advocated and attempted in the Internet
governance realm.

In the second part of the paper I look at arguably the broadest attempt to e-participation to
date, the e-rulemaking initiative in the US. Citing empirical data over a decade of
operation I explain the failure of the experiment, and the conclusions that are (and must
be) drawn from it.

In the third part, I explain how a different look at the same data – focusing not on
participation in a governance process, but on enhancing the quality of governance
outcomes – may paint a significantly more positive picture of e-rulemaking. When
combined with recent works by Hindman (2008) and Burkert (2007), among others, this
points towards a possible re-conceptualization of the tools of e-participation as effective
means to improve governance outcomes. If that is the case, Internet governance ought to
take note. In the final part, I briefly sketch out a few normative consequences such a re-
conceptualization might have for Internet governance, for example by including
informational mechanisms into ICANN’s governance setup to improve effectiveness and
(ultimately) legitimacy not through enhanced process, but higher quality policy
outcomes.

I. Of Means and Ends in Participatory Governance

Governance is intrinsically linked to power; governing implies laying down rules, and
thus (potentially) proscribing individual behavior. Like all exercise of power governing
therefore requires legitimization. Almost by definition, for democratic governance such
legitimization is rooted in the participation of the governed (Weber 2008). But how
exactly such participation happens (and normatively is being structured) is open to
debate.

Perhaps over the last half century a powerful viewpoint has gained currency that
emphasizes the link between democratic governance and a process of participation. In the

Electronic copy available at: http://ssrn.com/abstract=2798397

early 1960s, then sociologist Jürgen Habermas famously analyzed the changing shape of
the public sphere (Habermas 1968). He suggested that successful participation happened
when the French bourgeoisie became actively interested in public affairs, debating
political questions in the tea and coffee houses of pre-revolutionary France. It
transformed them from people to citoyen, to citizens participating in the shaping and
evolvement of society as a whole. For Habermas, intense deliberation among people is a
precondition for the establishment of democratic governance. If that is no longer possible,
for example because deliberative processes fail to scale to the size of large inclusive
nation states, special institutions and intermediaries have to take on the role of
deliberation – at least to an extent. For Habermas, this is the (idealized) role of the press
in liberal democracies.

Political philosophers, especially in the United States, have voiced skepticism of liberal
democracies’ ability to institutionalize successfully the process of participation. Benjamin
Barber, for example, has juxtaposed our current state of what he calls “thin democracy”
with his view of “strong democracy” – which is a “distinctively modern form of
participatory democracy” (Barber 1984/2004). Gutmann and Thompson have similarly
argued for a shift towards a “deliberative democracy” (Gutmann and Thompson 1996), a
term originally coined by Joseph Bessette (see Bessette 1994). And John Rawls
suggested specific procedures, including employing a “veil of ignorance” to ensure just
societal decision-making. (Rawls 1971) These authors may vary in their prescriptions and
definitions, but what they all share (and indeed share with Habermas) is a strong
emphasis on and belief in the importance of the process of participation for legitimizing
governance.

Already Habermas pointed out that modern nation states are too unwieldy and large to
enable citizen-level participation of the kind and intensity the advocates of deliberative
democracy require. Some of them, however, quickly have seen the potential of modern
information and communication technologies to bring the process of participation and
deliberation to the masses. In fact, going beyond theorizing, James Fishkin has worked on
operationalizing and implementing deliberation of large audiences with the help of

Electronic copy available at: http://ssrn.com/abstract=2798397

modern technologies. (Fishkin 1991; Ackerman & Fishkin 2004). Information and
communication technologies are thus elevated to tools that may enable and facilitate a
process of participatory deliberation that, it is argued, had last been possible among the
citoyen of pre-revolutionary France, if at all. And the process of participatory deliberation
in societies is turned into a defining feature of “strong” (as opposed to “thin” liberal)
democratic governance.

The emphasis on the process of participation is one central element of the narrative. A
second, supporting element is assigned to transparency. Without an abundance of useful
information about the issue at hand, deliberation advocates suggest no meaningful
participatory deliberation is possible. For them, the provision and sharing of information
is both a precondition to and a quality of the process of participatory deliberation.
Transparency in governance is the mechanism by which information is made to flow, in
turn by which deliberation is facilitated. And once again, technology’s role is ascribed to
provide the logistical infrastructure for these information flows. This links governance to
a deliberative process, and process to information technology.

This is the theoretical debate that has been taken place not just among political scientists,
sociologists, and students of media and democracy. It has also provided a theoretical
backdrop for projects and experiments of increasing citizen engagement through the use
of (technical) tools of deliberation – from local online discussion forums (Grönlund
2002) to complex multimedia setups like those pioneered by Fishkin at Stanford and
Vincent Price at the Annenberg School.

Strikingly, these core elements of this conception of democratic governance –

participation, process, and transparency – are visible in the Internet governance debates
as well (see Mueller 2002). It seems as if the rhetoric of the future of governance in our
(nation-state dominated) democracies found similar traction in the more global give and
take of debates over how to govern the net, at least superficially. Take for example
governance of the DNS and related services at the root. Issues of inclusion and
participation played a significant role at the formation stage of ICANN. Jon Postel and

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his colleagues envisioned the transition from IANA to ICANN as crafting an
organizational home for the DNS, while clearly keeping the elite technical community in
charge. In contrast, the IFWP, at least somewhat encouraged by the Clinton
administration, emphasized participation and stakeholder inclusion. Similarly, Professor
Tamar Frankel’s involvement as a facilitator, with her academic background on issues of
corporate governance and fiduciary trust, acknowledges the importance of process and
transparency. IFWP did not decide the fate of ICANN (although it surely shaped the
trajectory of the debate), neither did Professor Frankel. That process remained captured
by the technical and commercial stakeholders involved. But in the numerous meetings
debating DNS governance, the rhetoric of participation, process, and transparency was
unmistakable.

Moreover, as Mueller (2002) has detailed, in the final stages of setting up ICANN and
under pressure of the Clinton administration, ICANN made a number of important
concessions to the spirit of IFWP. The direct global elections of the nine at-large
members of ICANN’s board very much reflect the need to increase participation and
inclusion, as did the set up of an advisory committee on membership. And ICANN’s
concession to open up (some) of its operations and proceedings directly responded to the
perceived demand for more transparency. Participation, process and transparency thus
turned into core elements of the Internet governance debate, arguably to a larger extent
than ICANN’s initial setup had reflected.

The involvement of a non-profit foundation at that phase of Internet governance

connected the values of participation, process and transparency to the mechanisms of
technology. The Markle Foundation, run by Clinton friend Zoe Baird had offered ICANN
financial and related support in organizing the planned global online at-large elections.
For Markle it was an obvious choice. After all, the foundation saw its mission to foster an
“informed citizenry through innovative uses of media and communications technologies”
(Markle Website 1998). Advocating online transparency and participation in Internet
governance also was in line with Markle’s other interest at that time – to engage online
the voting public during the 1998 US election cycle. Not surprisingly therefore Markle’s

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homepage at that time sports quotes from “strong democracy” advocate Benjamin Barber,
suggesting the use of technologies to engage citizens in governance. And one of Markle’s
three lines of sponsored programs is entitled “public engagement through interactive
technologies”. (Markel Website 1999) In 2000, Markel made available to ICANN
significant direct financial support to increase ICANN’s transparency. Markle also put
Andrew Shapiro, a young Internet policy researcher, in charge of some of these
engagement initiatives. Shapiro had just published a book that argued Internet technology
would vastly enhance citizens’ ability to participate in societal decision-making (Shapiro
1999).

My aim is not to prove any conspiracy theory of Internet governance – far from it! Rather
I suggest that the formative days of ICANN happened in a context and rhetoric of the
need for participatory governance based on process and transparency, enabled (if not
shaped) by modern technology. Thus, these Internet governance debates became
rhetorically captured by a particular conceptualization of democratic governance. But
Internet governance wasn’t the only one.

II. E-Rulemaking a Failure of E-Participation

In most modern democracies, legislatures enact laws that bind society and constrain
behavior. In addition and less well known, government agencies pass thousands of
regulations every year. These regulations, too, constrain our behavior, but because they
are often highly technical and complex, legislatures tend to delegate their design to
specialized regulatory entities. The staff of these agencies supposedly is knowledgeable
in the specialized areas they regulate, and thus better able to craft regulatory rules. But
such delegation of rulemaking power to experts not directly responsible to the electorate
exacerbates questions of legitimacy. In the US the traditional response to this question, as
Coglianese (2007) suggests, has been to ensure that regulatory agencies make public
much of their rule-making intentions and process, and permit stakeholders and the public
at large to comment on proposed rules. Here, too, transparency and a process of
participation in the rulemaking deliberations have been thought necessary to ensure that

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regulatory governance remains democratic. Unfortunately, given the mechanics of the
process of US federal rulemaking, only a select number of individuals could dedicate the
time required to develop the necessary expertise and physical presence at regulatory
agencies to take part in the process. Mostly these individuals represent powerful
corporate stakeholders (although well-organized and well-funded NGOs are active, too),
with the public at large having little to no practical say.

Unsurprisingly, echoing the “strong democracy” argument, commentators have suggested

that technology could make the process of rulemaking much more inclusive and
participatory. They wrote of the ability of technology to “revolutionize” the rulemaking
process, and to bring about full transparency and widespread participation by ordinary
citizens. (Johnson 1998; Noveck 2004). This enthusiasm was also fuelled by the Clinton
administration’s emphasis on government reform, which, too, was founded on a strong
believe in the transformational power of information technologies, and which continued
into the first George W. Bush administration (Goldsmith & Eggers 2004).

In 1998, the US Department of Transport was the first US federal agency to move its rule
making and commenting process online. By the summer 2002, the US Environmental
Protection Agency (EPA) had launched its version of an online system of electronic
rulemaking (e-rulemaking) enabling the public to comment on proposed rules. In terms
of absolute numbers the EPA system seemed to proof the “strong democracy” advocates
right: once commenting on proposed federal rules was easy enough for lay people to
accomplish, participation in the rule-making process skyrocketed. For example, the EPA
e-rulemaking website received more than half a million hits a month. And not only
seemed there be public demand for regulatory transparency and information on
rulemaking, it also seemed to prompt public participation: Rulemaking proposals with a
potentially large impact on the lives of ordinary citizens garnered hundreds of thousand
of comments each (Shulman 2003; de Figueiredo 2006).

These impressive numbers, however, hide a much less glamorous truth. First, even the
highest numbers of comments on proposed rulemaking represent less than five percent of

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the US electorate (Coglianese 207). Second, only a handful of proposed rules galvanize
the public. The average rate of public participation on a proposed rule by the FCC is less
than five percent that of the proposed rule with highest participation. (de Figueiredo
2006). Third, even when public participation is very high, comments tend to follow
boilerplate templates provided by stakeholder organizations. As Coglianese details, of
half a million of individual comments submitted in response to one controversial draft
rule to the EPA, the agency deemed only about 4,000 of the responses original – well
below one percent (Coglianese 2007). So even if technology has enabled citizens to get
active by using comment templates provided to them by stakeholder organizations, the
resulting unoriginal chatter is a far cry from the inclusive and deliberative public debate,
the “strong democracy” advocates have hoped for.

In sum, e-rulemaking – arguably the largest scale national endeavor to include citizens in
the drafting of government rules – has been a shocking failure as a tool of improving
citizen participation, process and deliberation, much like the at-large elections to
ICANN’s board have been a failure in creating and sustaining a “deliberative democracy”
on the net.

III. Substance, not Process

There may, however, be an unexpected bright side to e-rulemaking. What has been
overlooked in the single-minded focus on the process of deliberation and citizen
engagement is the informational dimension of the e-rulemaking experience. Because
rulemaking dockets can be accessed and comments submitted online, commenting does
no longer require one to travel physically to Washington. This has made it possible for
thoughtful, but not well-funded experts from afar to take part, resulting in, as Coglianese
(2007) suggests an increased participation (and thus inclusion) of representatives of less
affluent stakeholder organizations including many working for the public interest.

To be sure, to an extent this has furthered deliberation, but only among the relatively elite
group of substantive experts able to submit original comments, and thus engage in the

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complex regulatory debates - not the kind of broad based participation “deliberative
democracy” proponents had in mind. Instead e-rulemaking increased the width and
breadth of comments submitted – through the enabled participation of additional experts.
The net result is improved informational input, rather than improved deliberative process,
or as Coglianese put it, “strong information” rather than “strong democracy”. (Coglianese
2007).

“Strong democracy” proponents see democratic governance legitimized not just through
process – the participation of the governed -, but through a particular version of process:
the ongoing, deliberative and inclusive participation of the governed in governing.
Thereby they undervalue alternatives of legitimizing governance. The obvious one is
used by “thin democracy”, the liberal, representative democracies we are used to.
Habermas already pointed out that they can be quite legitimate if they permit and enable
intermediaries, which can take on some of the deliberative quality on the citizen’s behalf.
(Habermas 1968) Traditional mass media are the obvious example, and Internet
technologies seem offer further refinement. Blogs, wikis, and discussion forums have
been described as an “army of Davids” (Reynolds 2007), bringing about Habermassian
deliberative discourse (Froomkin 2003). As Hindman (2007) has shown, this is largely an
illusion (see also Sunstein 2006). What emerges is not mass citizen journalism
deliberating to uncover truth and wisdom (Reynolds 2007), but a limited number of new
information intermediaries, for example of very popular super-bloggers (Hindman 2007).

Coglianese seems to suggest another legitimization strategy for governance: through

information, not process. Rules are legitimate, this seems to suggest, if they are based on
and take into account all the relevant information, rather than simply having gone through
a specific process. In other words: What matters is regulatory substance, rather than the
process of regulation.

In Coglianese’s world the improvement of information input into regulatory rule making
that may lead to improved policy output, however, does not rest on the shoulders of the
masses, but on a functioning and vibrant ecosystem around e-rulemaking that depends on

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intermediaries to access and collect information, to evaluate facts, and to put forward the
kind of thoughtful proposals that regulatory agencies depend on as input in order to
improve the quality of their rulemaking output. Put differently, intermediaries persist, but
their goal differs: they are seen as helping to shape the substantive agenda, rather than as
deliberation surrogates.

IV. Normative Consequences

If the experiences with e-rulemaking hold lessons for how to structure Internet
governance, what are they?

The first is quite obvious and likely uncontroversial. Given the disappointing results of
utilizing e-rulemaking to create and sustain a deliberative process among the citizenry,
technology is not the much sought for silver bullet through which to engage the people,
and thereby legitimize governance. As it is unlikely (but not impossible) that the use of
technology yields different results for net governance, we should not invest time and
effort in employing it to reach “strong democracy” in the Internet context.

The second lesson, about possible alternatives, is less clear. Above I have briefly
sketched out two different alternative approaches in the context of e-rulemaking. The first
is built on a notion of “thin democracy”, of governing based on surrogate participation.
Legitimacy would be derived through both how intermediaries are interacting with the
citizenry, and to what extent they are able to advance the kind of deliberation among
themselves that satisfy Habermasian (or similar) requirements.

Another approach, arguably more promising, is to emphasize substance over process, and
thus to work towards ensuring that policy-makers are competent and have the relevant
information available to produce high quality policy outcomes. Here legitimacy would
depend mainly on the quality of enacted policies, rather than a participatory, inclusive
and deliberative process. The role of technology would be to enable the collection of
original and valuable policy inputs, of relevant information to be used by policy makers

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in the crafting of policies. In the context of Internet governance, this would point towards
ensuring that technically competent decision-makers are selected for ICANN’s board,
and that institutional structures and mechanisms are put in place that solicit and collect
the viewpoints of additional experts and stakeholders, so that the availability of financial
resources, physical presence etc is no prerequisite to feeding valuable information to
policymakers.

In other governance contexts, we tend to utilize the “thin democracy” approach in

contexts of general rulemaking, of legislatures enacting laws. The information input and
policy outcome approach is frequently used for more technical rulemaking, for what in
the US context has been the work of regulatory agencies. Whether Internet governance
lends itself more to the former or more to the latter, may thus be determined (at least in
part) by how we categorize the policy issues at stake.

Perhaps, though, this is not an either/or. Both approaches (if seen through a particular
conceptual lens) share important common ground. As Burkert (2007) pointed out, any
attempt to increase the quality of policy inputs especially for complex policy issues
requires the presence of intermediaries – outside policy and substance experts, as well as
information repositories, filters and relay stations for these experts, and communication
points to engage traditional and new media. This would lead us to an approach that is
founded on the concept of improved policy quality through improved inputs into policy-
making made possible through a thicket of existing and new information intermediaries.
(see also Mayer-Schönberger & Lazer 2007) In the context of Internet governance, this
would point towards an empowerment of such knowledgeable intermediaries, perhaps by
providing them more formal recognition as well as informational and financial resources
to carry out their task.

If Internet governance thus wants to learn from e-rulemaking, it may want to emphasize
the importance of substance over process, put in place mechanisms of input in policy
debates, and enable and facilitate the creation and continued functioning of an ecosystem
of intermediaries that help feed information to and from the policy processes. The system

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would be deemed successful – thus legitimizing the governance setup - not only if (a la
Habermas) the intermediaries engage in sustained deliberation, but also if it significantly
raises the quality of policies enacted.

V. Conclusions

In this brief paper, I first mapped out the debates on improving democratic governance in
our society by enabling deliberation, participation and transparency through technology,
and how they have influenced the rhetoric if not the trajectory of some recent Internet
governance debates. I explained how e-rulemaking provides a vivid case study of the
failure of such attempts to enhance, improve and legitimize governance through
deliberation. Looking at the e-rulemaking example in informational and substantive,
rather than procedural terms, however paints a different picture. If that is the case, then
the debate on Internet governance should take note – and perhaps focus more on
substance and less on process. I concluded by briefly sketching what such a shift would
entail.

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