Professional Documents
Culture Documents
Emerging Field of Internet Governance
Dr. Laura DeNardis
Yale Information Society Project; Yale Law School
Yale Information Society Project Working Paper Series
September 2010
While much Internet research focuses on Internet content and usage, 1 another important set of
questions exists at a level of technological design and governance orthogonal to content and therefore
generally outside of public view. Internet governance scholars, rather than studying Internet usage at
the content level, examine what is at stake in the design, administration, and manipulation of the
Internet's actual protocological and material architecture. This architecture is not external to politics and
culture but, rather, deeply embeds the values and policy decisions that ultimately structure how we
access information, how innovation will proceed, and how we exercise individual freedom online.
"Governance" in the Internet governance context requires qualification because relevant actors
are not only governments. Governance is usually understood as the efforts of nation states and
traditional political structures to govern. Sovereign governments do perform certain Internet
governance functions such as regulating computer fraud and abuse, performing antitrust oversight, and
responding to Internet security threats. Sovereign governments also unfortunately use content filtering
and blocking techniques for surveillance and censorship of citizens. Many other areas of Internet
governance, such as Internet protocol design and coordination of critical Internet resources, have
historically not been the exclusive purview of governments but of new transnational institutional forms
and of private ordering. Without this qualification, the Internet governance nomenclature might
incorrectly convey that this type of scholarship somehow advocates for greater government control of
the Internet (Johnson, Crawford, and Palfrey 2004).
The study of Internet governance is concerned with a number of overarching questions. How
are we to understand the role of private Internet ordering and corporate social responsibility in
determining communicative contexts of political and cultural expression? How can conflicting values be
balanced: for example, the desire for interoperability versus the need to limit some exchanges based on
authentication and trust? How should critical Internet resources be allocated, and by whom, to
maximize technical efficiency but also achieve social goals? How do repressive governments “govern”
the Internet through filtering, blocking, and other restraints on freedom of expression? What is the
1
Internet scholars examine a range of content and use related topics such as digital equality (Hargittai 2010), social media
(Boyd 2008), identity (Turkle 2005), knowledge production (Benkler 2006), Web 2.0 critiques (Lanier 2010) and copyright and
information intermediaries (Vaidhyanathan 2007).
1
2
2
The World Summit on the Information Society (WSIS) was a two‐phase process organized by the United Nations in Geneva,
Switzerland in 2003 and Tunis, Tunisia in 2005. A dominant source of contention in the WSIS process was the issue of United
States government oversight of ICANN and the prospect of further internationalizing this authority. One outcome of this
impasse was the formation of the Internet Governance Forum (IGF), which would have no decision‐making authority but which
would continue the multi‐stakeholder dialog.
3
that the physical infrastructure components can be used for other, non‐Internet applications but the
logical resources that will be discussed are unique to the Internet and essential for its operation,
regardless of underlying physical architecture. Similarly, virtual resources that are not unique to the
Internet, such as those associated with electromagnetic spectrum allocation and management, are
usually addressed outside of policy discourses about critical Internet resources, although there is
nothing inherently fixed about this distinction. But the main Internet governance concern over CIRs
involves logical, software‐defined resources unique to Internet architecture rather than physical
architecture or virtual resources not unique to the Internet. 3 This section will briefly describe three
types of critical Internet resources – Internet addresses, the Domain Names System (including the root
zone file and domain names), and Autonomous System Numbers (ASNs) – and will explain some of the
substantive policy issues in each of these areas.
One of the common characteristics of CIRs is the technical requirement for these resources to
serve as globally unique identifiers. Meeting this technical criterion of global uniqueness requires some
type of central coordination, a condition at the heart of debates over who controls these resources and
how they are distributed. Unlike many other types of technologically derived resources (e.g.
electromagnetic spectrum), CIRs have never been exchanged in free markets nor directly regulated by
sovereign governments. They have primarily been controlled by institutions, increasingly multi‐
stakeholder institutions, and have therefore always invoked questions about institutional legitimacy.
Internet Protocol addresses (IP addresses) are arguably the most fundamental resource required
for the exchange of information over the Internet. Each device exchanging information over the
Internet possesses a unique binary number identifying its virtual location, either assigned temporarily
for a session or assigned permanently. Internet routers use IP addresses to determine how to route
packets over the Internet. This is somewhat analogous to the postal system’s dependence on unique
physical addresses. Under the longstanding standard for Internet addresses, called Internet Protocol
version 4 (IPv4), 4 each binary address is a fixed 32 bits in length. This provides a reserve of 232, or
approximately 4.3 billion unique Internet addresses. In 1990, the Internet standards community
identified the potential depletion of addresses as a crucial design concern and the IETF recommended a
new protocol, Internet Protocol version 6 (IPv6) to expand the number of available addresses. IPv6
extends the length of each address from 32 to 128 bits, supplying 2128, or 340 undecillion addresses.
Despite the longstanding availability of IPv6 and for a variety of political and technical reasons, the
upgrade to IPv6 has barely begun on any global scale.
There have always been significant Internet governance policy questions about IP addresses,
primarily addressed within the traditional institutional framework of the Internet Assigned Numbers
3
Other definitions of critical Internet resources, such as the definition from the United Nations Working Group on Internet
Governance (WGIG), include issues directly related to telecommunications infrastructure, interconnection, and peering. There
are many Internet governance taxonomies and the preference reflected in this article is to include interconnection issues under
a separate topic of “Communication Rights and Infrastructure Management”, addressed later in this chapter.
4
This IPv4 standard originated in the early 1980s and, in an era proior to the web or even home computers, 4.3 billion seemed
like an enormous number of Internet addresses. For more information about the original specification, see Jon Postel, RFC 791,
“Internet Protocol, DARPA Internet Program Protocol Specification Prepared for the Defense Advanced Research Projects
Agency,” September 1981.
4
Authority (IANA, now a function under ICANN) and the regional Internet registries (RIRs) 5 to which IANA
allocates addresses for regional assignment. For example, who should control the assignment and
allocation of Internet addresses and on what basis do they derive their legitimacy. Should resources be
directed toward first mover advantage, market efficiency, distributive justice, or some other objective?
The most pressing current policy question about IP addresses involves how to manage the
remaining reserve of IPv4 addresses. There is broad consensus that the prevailing IPv4 address reserve
will soon be exhausted, a phenomenon with enormous implications, especially in parts of the
developing world without large existing stores of IPv4 addresses. The current debate involves the
question of what type of market intervention or government regulation might be necessary, if any at all,
to address the projected exhaustion of the IPv4 address space or provide incentives for upgrading to
IPv6 (DeNardis 2009a).
The domain name system establishes the domain name space in the same way that the Internet
Protocol establishes the Internet address space. The DNS translates between alphanumeric domain
names and their associated IP addresses necessary for routing packets of information over the Internet.
The DNS, through this address resolution process, handles billions of queries per day. To oversimplify
the DNS, it is an enormous, hierarchical database management system (DBMS) distributed globally
across countless servers. The Internet’s root name servers contain a master file known as the root zone
file itemizing the IP addresses and associated names of the official DNS servers for all top‐level domains
(TLDs): generic ones like .com, .edu, .gov, etc. and country codes, or ccTLDs such as .cn for China or .uk
for the United Kingdom. DNS management and domain name administration has always been a central
task of Internet governance. The IANA function under ICANN is ultimately responsible for managing the
assignment of domain names, although delegated through Internet registrars, and for controlling the
root server system and the root zone file. Milton Mueller’s Ruling the Root (2002) provides an excellent
analysis of the evolution of ICANN and the domain name system and associated governance debates.
The most high‐profile Internet governance controversies in this area have involved institutional
and international power struggles over DNS control and corresponding issues related to legitimacy,
democracy, and jurisdiction (Mueller 2002, Paré 2003). A significant part of these debates has involved
the historical ties between ICANN and the United States government in the context of growing Internet
internationalization. The controversy over U.S. ties to control of the domain name system continues to
be a heated topic in international policy debates about Internet governance (e.g. Mayer‐Schönberger
and Ziewitz 2009).
There have been other substantive policy issues related to domain names. For example, the
DNS was originally restricted to ASCII characters, precluding the possibility of domain names in many
language scripts such as Arabic, Chinese or Russian. The introduction of internationalized domain names
(IDNs) in the opening decade of the 21st century enabled country code top‐level domains in native
5
The five Regional Internet Registries are the African Network Information Centre (AfriNIC), the Asia Pacific Network
Information Centre (APNIC), the American Registry for Internet Numbers (ARIN), the Latin America and Caribbean Network
Information Centre (LACNIC), and Europe’s RIPE Network Coordination Centre (RIPE NCC). The RIRs are private, nonprofit
institutions that employ a contract‐oriented administrative model of governance. They serve large geographical areas,
managing the address space allocated to them by IANA, under ICANN.
5
language scripts. The relationship of domain names and freedom of expression is another recurrent
topic as well as DNS security and trademark dispute resolution for domain names, both discussed later.
Autonomous System Numbers (ASNs) are another critical Internet resource, albeit one not as
closely examined in Internet governance scholarship. Roughly speaking, an autonomous system (AS) is a
network operator. More accurately, an AS is made up of a unique collection of routing prefixes used
within a network system connected to the Internet. This virtual resource is a central currency of the
Internet’s routing system. Each autonomous system must have a globally unique ASN for use in Border
Gateway Protocol (BGP) routing. Similar to IP addresses, IANA assigns blocks of ASNs to RIRs, which in
turn allocate numbers to network operators. ASNs have evolved similarly to the IP address space in that
the original 16‐bit number, allowing for only 216 unique numbers, has been expanded to 32‐bit numbers
to provide orders of magnitude more globally unique network identifiers. 6 Many policy concerns about
IP addresses are relevant to ASNs: who is eligible for an ASN, how are resource constraints shaping the
political economy of these numbers, and what are the global implications of the proliferation of private
autonomous system numbers that are designed to converse globally unique ASNs but that can not be
used to access the global Internet?
This theme of control over technologically derived resources is not unique to Internet
governance. New technologies create new, scarce resources. Battles over new scarce resources have
historically been an issue of information and communication technology policy, whether
electromagnetic spectrum allocation for broadcasting (Douglas 1987) or bandwidth allocation in net
neutrality debates (Wu and Yoo 2007). What may be unique about critical Internet resources, and in
particular IP addresses, is that they are completely global rather than geographically bounded resources
and they require central coordination because of the technical criterion of each resource serving as a
globally unique identifier.
Internet Protocol Design
Another central Internet governance function is the development of Internet technical protocols, the
standards that enable interoperability among information technologies. The Internet "works" because it
is universally based upon a common protocological language. Protocols are sometimes considered
difficult to grasp because they are intangible and often invisible to Internet users. They are not software
and they are not material hardware. They are closer to text (Galloway 2004). Protocols are literally the
blueprints, or standards, that technology developers use to manufacture products that will inherently be
compatible with other products based on the same standards. Routine Internet use involves the direct
engagement of hundreds of standards ranging from Bluetooth wireless, Wi‐Fi standards, the MP3
format for encoding and compressing audio files, an array of VoIP protocols, HTTP for information
exchange among web browsers and servers, and the fundamental TCP/IP protocols on which the
Internet relies at the network and transport layer. These are just a few of the protocols that provide
6
See Request for Comment 4893, “BGP Support for Four‐octet AS Number Space” URL available at
http://tools.ietf.org/html/rfc4893.
6
order to binary streams to represent information in common formats, encrypt or compress information,
provide error detection and correction, and provide common addressing structures.
The Internet Engineering Task Force is the institution that has developed the core networking
protocols for the Internet, including IPv4, IPv6, TCP, UDP, and countless other standards. Much Internet
governance scholarship about protocols has focused on this entity (e.g. Froomkin 2003). But the
standards developed by the IETF are only part of a vast protocol ecosystem required to provide end‐to‐
end interoperability for voice, video, data, and images over the Internet. For example, the World Wide
Web Consortium (W3C) sets application‐layer standards for the web. The International
Telecommunication Union (ITU) sets Internet related standards in areas such as security and voice over
the Internet. The Institute of Electrical and Electronics Engineers (IEEE) develops vital specifications such
as the Ethernet LAN standards and the Wi‐Fi family of standards. Countless other entities develop
specifications for the technologies that collectively enable the transmission of information over the
Internet: including national standards bodies such as the Standardization Administration of China (SAC);
the Motion Picture Experts Group (MPEG); the Joint Photographic Experts Group (JPEG); and the
International Organization for Standardization (ISO).
It is well established in Internet governance research that Internet protocols not only serve
critical technical functions but can have significant political and economic implications (Morris and
Davidson 2003, Garcia 2005). The economic effects of compatibility standards in information technology
have been studied since before the advent of Web (David and Greenstein 1990). The open publication of
Internet standards with minimal intellectual property restrictions has enabled rapid innovation and has
generally produced the market effect of full competition among companies developing products based
on these standards. Conversely, more proprietary standards can restrict competition, be used as non‐
tariff barriers to trade or, arguably, slow innovation. Web accessibility standards make decisions about
the extent of access for the hearing impaired and those with other disabilities. Authentication and
encryption standards intersect directly with individual privacy online and often mediate between
competing values of individual civil liberties and national security and law enforcement functions.
If protocol design was a purely technical exercise with no economic and political externalities
than the nature of the standards‐setting process would be irrelevant. But standards can have public
interest effects and are established not by legislatures but by private standards‐setting institutions,
raising many questions for Internet governance research. How are values reflected, or how should they
be reflected, in protocol design? What are the processes that could help provide the legitimacy for
institutions to make these policy choices? What are the responsibilities of governments, if any, to
promote or encourage conditions that promote certain types of standardization processes?
A current debate in Internet governance policy involves what constitutes an open standard
(Ghosh 2007, Krechmer 2005, DeNardis 2011). This is a highly charged issue with much at stake for the
future of Internet innovation and for technology companies whose success is dependent upon a
particular definition of open standards. As Phil Weiser describes, "The most formidable regulatory
regime that has governed the Internet to date is the institution of open standards that has allowed the
Internet to grow exponentially as a network of networks (Weiser 2001). Questions about standards
openness exist in several areas. The first is the question of openness in standards development,
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meaning who is permitted to participate in standards design or permitted to access information about
the development of a standard and associated deliberations, minutes, and records. A second set of
questions addresses the degree of a standard’s openness in its implementation, meaning whether the
standard itself is published, whether the standard can be accessed for free or for a fee, and to what
extent the standard has underlying intellectual property restrictions for implementing the standard in
products. A third set of questions addresses the openness in a standard’s use, meaning the resulting
extent of product competition and user choice of technologies based on the standards. Particularly, if
one considers application‐layer standards for voice, images, and video, the degree of openness of
Internet‐related standards is a complicated spectrum requiring a great deal of both descriptive and
normative scholarly attention.
Another global Internet governance debate involves the question of the appropriate role of
governments in promoting certain types of standards, either in society or in internal government
procurement of information and communication technology infrastructures. For example, governments
(e.g. Japan, the European Union, China) have attempted to play a role in promoting the national
adoption of the IPv6 protocol. Governments are also increasingly trying to encourage the adoption of
open standards, often through electronic government interoperability frameworks (e‐GIFs) specifying
information technology standards for e‐Governance infrastructures.7
Internet Governance‐Related Intellectual Property Rights
Another Internet governance concern involves intellectual property rights such as patents, copyright,
and trademarks. The increasing use of trade secrecy laws for information intermediation functions like
search engines is likely to also become an important area of emerging Internet governance research, a
topic addressed in the final section of this paper. This area of Internet governance can sometimes be
overlooked because some of the most pressing IPR concerns, at least in the Internet context, primarily
focus on content. As suggested earlier, Internet governance inquiries are less concerned about content
than about issues of designing and administering Internet technical architecture. But whereas
intellectual property rights enforcement online is designed into and implemented in technical
architecture – e.g. copyright filtering or digital rights management (DRM) technologies (Benoliel 2004,
Gillespie 2007), these technical protection measures are a concern of Internet governance.
However, many intellectual property issues more directly address technical architecture and
specific areas of Internet resource coordination, rather than content. To illustrate this increasing
phenomenon, and in the interest of space, this section will describe one Internet governance IPR
example from three areas of intellectual property rights (patents, copyright, trademark). These will
include: standards‐embedded patents, copyright of technical standards, and trademark disputes over
domain names.
7
See, for example, the South African government's MIOS v.4.1 document, Minimum Interoperability Standards (MIOS) for
Information Systems in Government, accessed at http://www.dpsa.gov.za/documents/egov/MIOSVer4_1_2007.pdf; see also
Brazilian government's e‐PING Electronic Government Interoperability Standards Reference Document Version 4.0 (December
2008) accessed at www.governoeletronico.gov.br/anexos/e‐ping‐versao‐4‐0‐in‐english.
8
An ongoing concern and debate involves the increasing extent of royalty‐bearing patent claims
embedded in the standards underlying information exchange online (DeNardis 2009b). The Internet has
experienced rapid innovation and growth in part because of its underpinning of openly available
technical protocols with minimal intellectual property restrictions. Indeed, the core Internet protocols,
such as TCP/IP standards, have had minimal intellectual property restrictions. The evolution of the
Internet’s architecture and of Internet governance is creating more complicated IPR conditions. A single
device obviously integrates numerous functions – voice, video, text messaging, imaging, and is able to
connect to multiple networks like GSM cellular networks, Wi‐Fi, or global positioning systems (GPS).
These single devices can embed hundreds of standards, many of them now royalty‐bearing. This
increasing integration of royalty‐bearing standards into the Internet landscape can have effects on
innovation, on economic competition, and on costs to end users (Kobayahi et al. 2009). Intellectual
property scholar Mark Lemley has described the problem of patent owner holdup, particularly in the
technical standardization context, as “the central public policy problem in intellectual property law
today.” (Lemley 2007: 149) An additional complexity is that standards‐setting institutions, even those in
the same industry, all have different policies about IPR (Lemley 2002). The escalation of IPR complexity
in Internet standards environments is accompanied by a related issue – the use of intellectual property
laden standards as alternative trade barriers in global markets (Gibson 2007). The extent to which
intellectual property rights are increasingly embedded in Internet‐related standards, and the empirical
implications of this phenomenon, is a critical topic of inquiry for Internet governance scholarship.
A related question involves copyright protection for Internet‐related standards. Do standards‐
setting organizations have adequate incentives to develop standards without recourse to copyright
protection of the standards, once developed? Because standards have to be universally adopted to
achieve desired interoperability copyright restrictions can amount to monopoly rents that exploit the
principle of universality. In the context of Internet standardization, traditional protocols, such as those
developed by the IETF and W3C, are freely available without copyright protections. Other standards,
such as those developed by the International Organization for Standardization (ISO), impose a charge for
accessing a standard or for reproducing the standards. An important Internet governance question
inquires about the implications of the copyrightability of standards for innovation as well as the public
interest implications of copyrighted standards, especially in cases in which the use of a particular
standard is somehow mandated by government regulations (Samuelson 2007).
Trademark disputes have been at the center of many policy controversies over domain names.
What are the legal remedies for dealing with trademark‐infringing domain name registrations and what
is the responsibility, if any, of domain name registries for infringement? National legal remedies for
Internet trademark disputes have not always been helpful because of jurisdictional complexities such as
where a trademark is registered versus where a server is located versus where a trademark infringing
entity resides. Traditional legal intervention in trademark disputes is also too lengthy of a process
relative to the quick pace of Internet developments. ICANN’s Uniform Domain‐Name Dispute‐Resolution
Policy (UDRP) has served as a mechanism for trademark protection in the sphere of domain names but,
like many of ICANN’s activities, has long been controversial (Geist 2001).
9
Internet Security and Infrastructure Management
When the Internet is disrupted by a denial of service or other attack, all other areas of Internet
governance seem relatively unimportant. Securing critical Internet infrastructure is one of the most
critical areas of Internet governance and one that involves a variety of solutions and problems related to
authentication, critical infrastructure protection, encryption, worms, viruses, denial of service attacks,
and data interception and modification. Internet governance scholars address a number of questions
related to problems of cybercrime and cybersecurity. Is the Internet’s underlying routing and
addressing system adequately secure? How vulnerable is the DNS to a major service disruption? What is
the relationship between national and international approaches to Internet security and how is this
coordinated? What are the responsibilities of the private sector, individual users and technical
communities and where does government fit in this framework (Brown and Marsden 2007)? Some
describe Internet security as part of a “peer production of Internet governance” framework, meaning
that individuals and the companies operating networks are primarily responsible for securing the
Internet (Johnson, Crawford, and Palfrey 2004). This model misses a number of critical Internet security
issues. It is true that the private sector develops and implements the majority of Internet security
measures. Businesses selling products online implement voluntary authentication mechanisms such as
public key cryptography to secure online transactions. Service providers, business Internet users, and
individual users implement their own access control mechanisms such as firewalls.
But this view of the peer production of Internet security also has to extend to the multi‐
stakeholder institutions that design the protocols intended to secure information (e.g. encryption
protocols), authenticate users (e.g. public key cryptography), and secure Internet infrastructure (e.g.
IPsec, DNSsec). This is also one area of Internet governance in which the government is necessarily quite
involved. Most national governments enact policies for critical infrastructure protection and
cybersecurity. For example, the U.S. Department of Homeland Security operates a Computer Emergency
Response Team (CERT) which works in conjunction with private industry to identify security problems
and coordinate responses. Detecting and responding to Internet security problems is a complicated area
of public–private interaction and also one requiring transnational coordination. There are hundreds of
CERTs around the globe, many of which are hybrid public–private institutions. The coordination of
information and responses to attacks among these public–private entities is a critical Internet
governance concern. This is one area that benefits from conceptual frameworks of Internet governance
that address co‐production processes involving a complexity of actors (Levinson 2010).
Internet governance scholarship in this area also extends well beyond the end user Internet
security problems that are most visible to the public such as viruses and worms. Many types of attacks
target the Internet’s underlying infrastructure. One example involves distributed denial of service
attacks (DDoS) that hijack computers and deposit code that unknowingly makes these computers work
together to disable a targeted computer by flooding it with requests. The targets of these attacks have
included the Internet’s root servers, high‐profile commercial web sites, and government servers. These
are all significant Internet governance concerns, especially attacks on the domain names system, which
10
can potentially affect large parts of the Internet. Two other Internet security concerns addressing
underlying Internet infrastructure involve securing the DNS itself (Kuerbis 2007) and securing the
Internet’s routing and addressing infrastructure (Mueller and Kuerbis 2010).
Internet Governance‐Related Communication Rights
Freedom of expression and association are increasingly exercised online and institutional, governmental,
and private decisions about Internet architecture can determine the extent of these freedoms as well as
the degree to which online interactions protect individual privacy and reputation. The same
technologies that expand freedom of expression have created unprecedented privacy concerns and
Internet governance decisions often must mediate between the conflicting values of free expression and
privacy.
Therefore, Internet governance scholarship, as well as advocacy, often uses a “rights” framing to
address substantive issues. On one side are the Internet governance issues that address the prospect for
governments to promote the public interest through interventions such as universal access policies,
broadband incentives, and network neutrality regulations (Yoo 2004, Wu 2005, Felten 2006, Wu and
Yoo 2007). On the other side are mounting concerns about government censorship and surveillance and
ways in which suppression of freedom of expression increasingly is designed into or enabled by Internet
infrastructure (Dutton et al. 2010). Technical measures such as content filtering, digital rights
management techniques, and blocking access to web sites are techniques that repressive governments
can use to “govern” the flow of information on the Internet (Diebert et al. 2008). To the extent that
government policies as well as architectural design and implementation decisions determine
communication rights and civil liberties online, this area is an important part of Internet governance.
Emerging Topics: The Privatization of Internet Governance
This section suggests that various types of private ordering increasingly perform Internet governance
functions and that there is a moment of opportunity for researchers to examine this phenomenon more
closely. Private industry has always played a crucial role in the design and administration of the Internet.
Representatives from technology companies actively participate in standards‐setting organizations;
private companies operate and manage the wired and wireless telecommunications infrastructures
underlying the Internet; private corporate Internet users are responsible for securing Internet
transactions with customers. There are countless examples.
Private industry Internet governance often takes place at the level of infrastructure
management, an area fairly invisible to the public. In other areas, the role of private industry in ordering
the flow of information over the Internet is much more visible and well understood. This is particularly
true at the Internet content level. Social media companies like Facebook make decisions that influence
individual privacy online (e.g. the Beacon controversy). Recall how Yahoo! settled a lawsuit brought in
the U.S. by several Chinese dissidents who alleged they were persecuted for political speech after
Yahoo! revealed their identities to the Chinese government. The United States government asked
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Twitter to delay scheduled service maintenance during the protests following the 2009 Iranian
presidential election so that online dissent and citizen journalism could continue unabated. Google
initially took criticism from international human rights organizations for complying with requests to
delete politically sensitive YouTube videos or to filter content. These circumstances have raised public
questions about corporate social responsibility as well as the ethical and legal consequences potentially
faced by corporations involved in these controversies. These examples address Internet content control
rather than coordination of the Internet’s protocological or material architecture.
There are at least three examples of private industry Internet governance at the level of
infrastructure management that could benefit from additional research and empirical analysis: 1) private
sector Internet backbone peering agreements; 2) network management via deep packet inspection; and
3) private industry use of trade secrecy laws to control the flow of information online. The following
sections briefly discuss these topics.
Private Sector Internet Backbone Peering Agreements
The Internet has a physical architecture as much as a virtual one. At the level of infrastructure,
scholarship has primarily focused on access and "last mile" issues of interconnection. For example,
network neutrality papers focus primarily on last mile and home Internet use. Much less scholarly
attention has been given to the Internet’s backbone infrastructure. The Internet is a collection of IP
networks owned and operated by private telecommunications companies such as British Telecom, Korea
Telecom, Verizon, AT&T, Comcast, and many others. These companies operate hundreds of thousands
of miles of transmission facilities, including terrestrial fiber optics, microwave facilities, submarine fiber
cable, and satellite links. These backbone facilities aggregate Internet traffic and transmit bits over
backbones at rates upwards of 40 Gbps (e.g. OC‐768 fiber optic transmission). For the Internet to
successfully operate, Internet backbones obviously must interconnect.
Independent commercial networks conjoin either at private Internet connection points between
two companies or at multi‐party Internet exchange points (IXPs). Information from one service
provider’s network flows seamlessly through another provider’s network through high‐speed fiber optic
cable connected to the shared switching equipment at IXPs. These IXPs are the physical junctures where
different companies' backbone trunks interconnect, exchange Internet packets and route them toward
their appropriate destinations. One of the largest IXPs in the world (based on throughput of peak traffic)
is the Deutscher Commercial Internet Exchange (DE‐CIX) in Frankfurt, Germany. DE‐CIX was founded in
1995 and is owned by the non‐profit ‘eco Internet Industry Association.’ 8 This IXP connects hundreds of
Internet providers, including content delivery networks and web hosting services as well as Internet
service providers. For example, Google, Sprint, Level3, and Yahoo all connect through DE‐CIX, as well as
to many other IXPs. Other interconnection points involve private arrangements between two
telecommunications companies to connect their respective IP networks for the purpose of exchanging
Internet traffic. Making this connection at private interconnection points requires physical
8
Background information about DE‐CIX is available at https://www.de‐cix.net/.
12
interconnectivity and equipment but it also involves agreements about cost, responsibilities, and
performance.
There are generally two types of agreements ‐ peering agreements and transit agreements.
"Peering agreements" refer to mutually beneficial arrangements whereby no money is exchanged
among companies agreeing to exchange traffic at interconnection points. In a transit agreement, one
telecommunications company agrees to pay a backbone provider for interconnection. Transit
agreements often involve a smaller company paying a larger company in exchange for this private
interconnection.
Voluntary private peering agreements allow service providers to share the costs of exchange
points and sometimes provide service‐level agreements for characteristics such as reliability and latency.
In addition to the physical interconnection needed to exchange information from one backbone
provider's network to another, the exchange requires use of common protocols such as Border Gateway
Protocol (BGP). There is no standard approach for the actual agreement to peer, with some
interconnections involving formal contracts and others just verbal agreements between companies’
technical personnel. Formal contracts can establish conditions under which information packets are
exchanged and conditions under which the peering agreement could be terminated. The motivation for
peering agreements has an obvious economic as well as technical basis. Service providers normally
require a number of interconnection points to the global Internet to provide adequate service to their
customers and to engineer sufficient redundancy, network capacity, and performance. If a new
company, or a small company, solicits a peering agreement from a large backbone provider, one can
easily envision why the larger company would not find the agreement mutually beneficially.
Interconnection agreements are unseen in that there are no directly relevant statutes, there is
no regulatory oversight, and there is little transparency in private contracts and agreements. These
interconnection points have critical implications. One area of inquiry involves the critical infrastructure
implications of Internet backbone architectures and whether these backbones have sufficient
redundancy, capacity, and performance to meet requirements for the Internet's growth and reliability.
Problems with peering and transit agreements, not just problems with physical architecture, can
produce network outages. Recall the 2008 Internet outage stemming from the interconnection dispute
between Cogent and Sprint (Weiser 2009).
Another area of inquiry involves the competition and antitrust implications of peering and
transit agreements. Unlike other telecommunications services, there have been almost no market‐
specific regulations of interconnection points, either at the national or international level. Market
forces, coupled with antitrust oversight, have historically been considered sufficient to discourage anti‐
competitive behavior in backbone peering and transit agreements (Kende 2000). Others have cited
concerns about lack of competition in Internet backbones, dominance by a small number or companies,
and peering agreements among large providers that are detrimental to potential competitors (Kesan
13
and Shah 2001). Interconnection disputes have been numerous among individual companies and
developing countries have complained about transit costs to connect to dominant backbone providers. 9
These interconnection points, because they concentrate the flow of traffic between network
operators, are also obvious potential points of government filtering and censorship. Having greater
transparency and insight into the arrangements and configurations at these sites of potential
government intervention is important and is an area in need of additional Internet governance research.
Finally, the emerging area of interconnection patents is a critical area of Internet governance
scholarship. For example, several companies successfully sued Vonage for infringing on patents for VoIP
interconnection techniques (Werbach 2008).
Network Management via Deep Packet Inspection
Another Internet governance area executed primarily by the private sector involves the use of deep
packet inspection (DPI) techniques for network management. Bendrath and Mueller have recently
described DPI as a “potentially disruptive technology, one with the ability to dramatically change the
architecture, governance and use of the Internet.” (Bendrath and Mueller 2010) Internet service
providers use DPI to perform network management functions as well as copyright enforcement in
cooperation with intellectual property rights holders. DPI is a capability manufactured into firewall
technologies that scrutinizes the entire contents of a packet, including the payload as well as the packet
header. This ‘payload’ is the actual information content of the packet. The bulk of Internet traffic is
information payload, versus the small amount of information contained within packet headers, which
contain administrative information that accompanies information payload. ISPs and other information
intermediaries have traditionally used packet headers to route packets, perform statistical analysis, and
perform routine network management and traffic optimization. Until recent years, it has not been
technically viable, or necessary, to inspect the actual content of packets because of the enormous
processing speeds and computing resources necessary to perform this function.
The end‐to‐end architectural principle (Saltzer et al. 1984) historically imbued in Internet
architecture has waned over the years with the introduction of Network Address Translation (NATs),
firewalls, and other intermediaries (Clark and Blumenthal 2007). Deep packet inspection capability,
engineered into network equipment, further erodes the end‐to‐end principle. DPI views all of an
Internet user’s activity including the content of web searches, file transfers, blog postings, and email.
This type of network intrusion into information payload raises a variety of questions (Bendrath 2009).
The most publicized instances of DPI have involved the ad‐serving practices of service providers
in Europe and the United States designed to provide highly targeted marketing based on what a
9
See the Organisation for Economic Co‐operation and Development (OECD) paper 'Internet traffic exchange and the
development of end‐to‐end international telecommunication competition' (2002) URL (last accessed in July 2010)
http://www.oecd.org/dataoecd/47/20/2074136.pdf.
14
customer views or does on the Internet. 10 Some scholars have raised concerns about state use of deep
packet inspection for Internet censorship (Wagner 2008). Other DPI applications more closely align with
traditional Internet governance functions. Network security was one of the originally intended uses of
DPI. DPI can help identify viruses, worms, and other unwanted programs embedded within legitimate
information and help prevent denial of service attacks.
Network operators also use DPI for network management functions such as maintaining an
acceptable quality of service for types of traffic (e.g. voice and video) that are highly impacted by
network latency. The use of DPI for network management is a recent phenomenon. It is also an area of
infrastructure management and Internet governance with almost no transparency. When network
providers use DPI to identify and prioritize certain types of traffic on their own networks, no third party
becomes systematically aware of this intervention. Many network operators (e.g. cable companies,
wireless providers) offer content services as well as network service provisioning. It seems obvious that
network providers will increasingly use DPI to prioritize content most closely linked to the services they
provide. This is also an area with possible secondary consequences, such as the prospect of providing a
new platform for copyright enforcement or for requests from governments to filter, block or censor
information online.
Regardless of whether DPI is used for ad serving, copyright enforcement, law enforcement,
traffic prioritization for competitive gain, or routine network management functions, this type of
information surveillance raises privacy implications for citizens using the Internet as well as concerns
about the chilling effects this surveillance would have on free expression, democratic participation,
cultural production, and possibly innovation.
The use of trade secrecy laws to control the flow of information online
The use of trade secrecy laws in Internet search and other information mediation is another emerging
area that should be of concern to Internet governance scholars. This is a concern particularly within
architectural components of the Internet that organize or manipulate the flow of information. Search
engines provide the best example of this because they use trade‐secret protected techniques related to
the algorithmic sorting and ranking of information. Companies like Google often invoke trade secrecy to
protect themselves, particularly in litigation matters, from disclosing information about how these
technologies and algorithms work (Grimmelmann 2007). To the extent that Internet governance refers
to policy and coordination issues related to the exchange of information over the Internet, the direct
mediating power of search engines in ordering information on the Internet is an Internet governance
concern. Like all technologies, search engines are not disembodied, neutral tools but reflect editorial
control decisions of designers. Policy controversies about search engines revolve around such issues as
the possibility of search engine bias (Goldman 2006), as well as state censorship implemented via search
technologies. Some suggest that greater transparency of algorithmic ordering, possibly legislatively
mandated transparency, or other legal remedies might be necessary to assess possible degrees of
10
For example, in 2008, Charter Communications announced that it would begin offering advertisers information to help target
its customers with marketing information tailored to the contents of Internet searches. Under pressure from privacy
advocates, lawmakers, and citizens, Charter decided to suspend its ad program.
15
search engine bias (Pasquale 2006). Here the issue of trade secrecy can conflict with public interest
concerns related to transparency and fairness. However, loosening trade secrecy protections in this area
might itself have unfortunate consequences such as making it easier to game search engine results,
particularly by search engine spammers. Trade secrecy issues will increasingly arise in other areas of
Internet governance, such as within the private agreements and techniques shared among carriers at
Internet exchange points discussed earlier in this paper.
Implications of Private Ordering
Private companies have always played a vital role in the pace of Internet innovation. They have also
always played a critical role in Internet governance functions ranging from designing standards to
securing information exchange to developing the product innovations that comprise the Internet’s
underlying routing and addressing infrastructure. But as new forms of private Internet governance
emerge, it is critical for society (and scholars) to assess the potential consequences. The positive aspects
of private industry Internet governance are the same as they have always been – the prospect of
technical expediency and the promise of market driven innovation.
But all areas of Internet governance, regardless of dominant actor, contain an inherent tension
between forces striving for interoperability and openness and forces striving for proprietary approaches
and information enclosure (Werbach 2008). This inherent conflict enters, to a greater or lesser degree,
nearly all of the current controversies in telecommunications policy, critical Internet resources, security,
standards, and intellectual property rights. This tension is especially present in private industry Internet
governance contexts. Trade secrecy in information intermediation is inherently closed. The possible
escalation of interconnection patents at IXPs is another move toward more proprietary norms. The
tradition of Internet designers has been to publicize information about the decisions that led to design
choices and administrative procedures. Private industry Internet governance topics are much less
transparent. The implication is that there could be a resurgence of proprietary values and a
diminishment of Internet governance transparency.
There are many other possible implications. Greater privatization of Internet governance could
be, in some environments, an invitation for greater government regulation of the Internet, a
phenomenon that would carry its own set of unintended consequences. The private Internet functions
mentioned herein, particularly DPI, also further erode the end‐to‐end principle of the Internet, marking
a further shifting of traditional Internet values. Another obvious implication is the use of Internet
governance techniques for competitive advantage. Standards‐based patents, search engine trade
secrecy, and competitively motivated prioritization of traffic can all have consequences for competition
and innovation. Emerging Internet governance research should assess the implications of this private
ordering and examine the key issues at stake at the intersection of technical expediency and the public
interest.
The Internet Governance Research Field
16
Internet governance as a field is inherently interdisciplinary. Examining research questions related to
control and governance of the Internet’s underlying architecture requires a high degree of technological
knowledge. For this reason, many Internet governance scholars have backgrounds in computer science
and engineering, either educationally or experientially. As evident in the literature review underlying
this paper, scholars most directly examining Internet governance are situated in interdisciplinary
information schools and Internet centers, 11 communication schools, the field of science and technology
studies (STS), and the legal academy. Traditional academic disciplines have somewhat circumvented
Internet governance topics. For example, political scientists accustomed to studying the governance
structures of nation states have not collectively embraced the study of more hybridized and diffuse
Internet governance institutions (Mueller 2010b).
Internet governance research is also inherently global, addressing issues that obviously
transcend national boundaries and nation‐state governance structures. A global community of Internet
governance scholars has begun to coalesce around a new academic society known as the Global Internet
Governance Academic Network (GigaNet). This scholarly community was formally launched in the
spring of 2006 in conjunction with the inauguration of the United Nations Internet Governance Forum.
GigaNet has four principal objectives: “to: (1) support the establishment of a global network of scholars
specializing in Internet governance issues; (2) promote the development of Internet governance as a
recognized, interdisciplinary field of study, (3) advance theoretical and applied research on Internet
governance, broadly defined: and; (4) facilitate informed dialogue on policy issues and related matters
between scholars and Internet governance stakeholders (governments, international organizations, the
private sector, and civil society).” 12
Hopefully this paper has conveyed how Internet governance functions carry significant public
interest implications and how these functions are diffusely distributed among new institutional forms,
the private sector, and more traditional forms of governance. Network management via deep packet
inspection raises privacy concerns; Internet protocol design makes decisions about accessibility,
interoperability, economic competition, and individual freedoms; critical resource administration has
implications for the future of the Internet’s architecture as well as the pace of access and economic
development in the global south; governments use technologies such as filtering and blocking for
censorship and surveillance.
Despite these significant public interest implications, Internet governance is largely hidden from
public view. User engagement with content, and the relative malleability of content, can convey the
false impression that there is a great deal of public oversight of the Internet. Other than ICANN‐related
controversies, many Internet governance debates and issues are not visible to the public. Many of the
Internet governance related intellectual property controversies remain mostly hidden (not intentionally
hidden but hidden nevertheless). Concerns about securing the Domain Name System and routing and
addressing infrastructures are similarly invisible to the public. The general public is also not aware about
what occurs at IXPs, the current open standards debates, or concerns about securing routing and
11
For example, the Berkman Center for Internet and Society at Harvard University, the Oxford Internet Institute, and the
Information Society Project at Yale Law School.
12
From the founding statement of principles of the Global Internet Governance Academic Network (2006)
17
addressing structures and the domain name system. This concealed complexity, to use Langdon
Winner’s term, all but precludes the ability of users to have oversight and input into these areas.
Internet governance scholars, and Internet scholars generally, have a moment of opportunity to bring
this largely hidden world to a wider audience and explain why citizens, and other scholars, should be
critically engaged in these debates.
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