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    The Big Picture Toward a Critical Theory of Cyberspace (and ICANN too)
    posted by michael on Friday January 17 2003, @07:00AM

    I've published an article, Habermas@discourse.net: Toward a Critical Theory of Cyberspace, 116 Harv. L. Rev. 749 (2003), arguing that the IETF is not just a good model for decision making, but that it actualizes Jèrgen Habermas's discourse theory. Since one of the main criticisms of Habermas's work is that his prescriptions are mere idealizations, and not workable in real life, this is a more substantial claim than it may seem. The article is not primarily about ICANN, although it does compare ICANN to the IETF somewhat unfavorably.

    I've attached the table of contents and the Introduction (minus the footnotes) so you can get the flavor of it before deciding if you want the whole 830K .pdf file. The introduction is a bit long, but then the whole thing clocks in at a svelte 125 pages. I've also attached the concluding part of the ICANN section (also sans footnotes).



    Table of Contents

    INTRODUCTION

    I. HABERMAS ON DISCOURSE THEORY

    A. Critical Theory
    B. Substantive Criteria
    C. Discourse Ethics and Practical Discourses

    II. THE INTERNET STANDARDS PROCESS: A DISCOURSE ABOUT DISCOURSE
    A. What Is the Internet?
    B. A Short Social and Institutional History of Internet Standard-Making
    1. The Prehistoric Period: 1968-1972
    2. Formalization Begins: 1972-1986
    3. IETF Formed, Further Formalization: 1986-1992
    4. Institutionalization and Legitimation: 1992-1995
    (a) The Internet Architecture Board (IAB)
    (b) The Internet Engineering Task Force (IETF)
    5. The Internet Standard Creation Process Today (1996-Present)

    III. The Internet Standards Process as a Case Study in Discourse Ethics
    A. The IETF Standards Process as the Best Practical Discourse
    B. Counter: The IETF Standards Process Is Too Male and Monolingual To Be the "Best" Practical Discourse
    C. Counter: It's Too Specialized To Matter
    1 . The Claim that the IETF Is "Technical" and Thus Outside the "Public Sphere."
    2. The IETF Debates Whether an RFC Is "Law."
    D. Can the IETF Example Be Generalized?

    IV. APPLICATIONS: CRITIQUES OF INTERNET STANDARDS FORMED OUTSIDE THE IETF
    A. Noninstitutional Standard-Making
    B. Socialization and the Reproduction of Non-Hierarchy
    C. Delegation: The Usenet Example
    1. Mass Revenge/Vigilante Justice: The Usenet Spam Problem and Its (Partial) Solution
    2. The Usenet Death Penalty
    D. Responses to Email Spam
    E. Market-Induced Standardization
    F. ICANN: The Creation of a New Governance Institution
    1. Why ICANN Matters
    2. ICANN's Legitimation Crisis
    3. Learning from ICANN

    V. TECHNOLOGIES FOR DEMOCRACY
    A. Hardware for Democracy
    B. Weblogs and Blogs
    C. Wiki Webs and Other Collaborative Drafting Tools
    D. Slash and Other Collaborative Filtering Tools
    E. From Open Government to Community Deliberation Tools

    VI. CONCLUSION


    Introduction

    In what has been called "a monumental achievement . . . that provides a systematic account of major issues in contemporary jurisprudence, constitutional theory, political and social philosophy, and the theory of democracy," Jürgen Habermas has proposed a discourse ethics as the basis for testing the legitimacy of legal institutions. Habermas seeks to identify and explain a method for justifying valid law and legal institutions, or at least the procedures necessary to make legitimate law. His approach blends an abstract theory of justice with a sociological theory of law that is grounded in empirical observations. Attempting to bring moral philosophy into the realm of political science, Habermas seeks nothing less than to describe a system that can validate moral choices, notably those about how society should be organized. Habermas proposes a way to identify norms that are presumptively legitimate because they were reached according to morally justified procedures. In so doing, Habermas directly confronts the most difficult obstacles to moralizing about social organization, including the fact/value distinction, false consciousness, and the injustices and imbalances caused by unequal distributions of power and knowledge. The outcome of this inquiry is of enormous relevance to the construction and legitimacy of the legal system, especially because Habermas argues that only a social system that guarantees basic civil rights and enables meaningful participation by all those affected by a decision can make legitimate decisions.

    In the spirit of Habermas's project of linking sociological observation with legal philosophy, this Article offers an analysis of the Internet standards processes--complex nongovernmental international rulemaking discourses. This Article suggests that one of these discourses is a concrete example of a rulemaking process that meets Habermas's notoriously demanding procedural conditions for a discourse capable of legitimating its outcomes. This unusual discourse is conducted by the Internet Engineering Task Force (IETF), which uses it to set the basic technical standards that define Internet functions.

    Identifying a practical discourse that meets Habermas's conditions does not by itself prove the truth of Habermas's procedural theory of justice. Rather, it removes the potentially crushing empirical objection that the theory is too demanding for real-life application. If Habermas's account of procedural legitimation is right, it should be capable of application. Conversely, if it were impossible to conduct a decisionmaking process in the manner that Habermas argues is necessary to legitimate outcomes, then his theory of justice would be, at the very least, incomplete.

    Standards discourses are but a tiny fraction of the conversations enabled by the Internet. This Article does not suggest that discourse on the Internet as a whole meets Habermas's condition for the generation of legitimate rules, limiting its claim to only a much smaller, slightly more formalized, set of cooperative procedures that make the other Internet discourses possible. Still, even one documented example of discourse ethics in action may disarm the oft-heard criticism that the Habermasian project cannot be achieved in practice.

    Habermas's work provides a standpoint from which social institutions that fail to live up to his very demanding standards can be critiqued in the hopes of making them more legitimate and more just. Armed with evidence that Habermasian discourse is achievable, this Article surveys other Internet-based developments that may approach the Habermasian ideal or, as in the case of the Internet Corporation for Assigned Names and Numbers (ICANN), that already claim a special form of legitimacy. This Article finds most of these other standard- setting procedures wanting in comparison to the IETF.

    Habermas seeks not only to define when a rulemaking system can claim legitimacy for its outputs, but also to describe tendencies that affect a modern society's ability to realize his theory. Speaking more as a sociologist than a philosopher, Habermas has also suggested that the forces needed to push public decisionmaking in the directions advocated by his philosophy are likely to come from a re-energized, activist, engaged citizenry working together to create new small-scale communicative associative institutions that over time either merge into larger ones or at least join forces. Like Habermas's idea of a practical discourse, this has the ring of something that may sound fine in theory but is difficult to put into practice. New technology may, however, increase the likelihood of achieving the Habermasian scenario of diverse citizens' groups engaging in practical discourses of their own. Technology may not compel outcomes, but it certainly can make difficult things easier. Although it is far too early to claim that the Internet will realize this Habermasian vision, this Article suggests how new Internet tools might, in time, help actualize this scenario.

    Part I of this Article outlines a portion of Habermas's theory of discourse ethics that is suitable for empirical testing, and situates these elements of Habermas's work in the larger context of critical theory. Part II is a social and institutional history of the IETF's Internet Standards process; it argues that participants in the IETF are engaged in a very high level of discourse, and are self-consciously documenting that discourse and its procedures.

    In light of the description provided in Part II, Part III argues that the IETF is an international phenomenon that conforms well to the requirements of Habermas's discourse ethics. In short, Part III asserts that one element of the Internet Standards process meets Habermas's requirements for a practical discourse. This is a very limited claim. Part III does not assert that discussion over the Internet as a whole in any way complies with Habermas's ideals, and indeed there is ample evidence in most discussion groups that it does not. Nor does Part III suggest that computer-mediated communications are necessarily the harbinger of a new, more democratic and legitimate regional, national, or international town meeting (although Part V suggests that there are some encouraging signs that the private sphere might be reorganized with the right tools and that this transformation might have healthy effects on the public sphere). Part III also does not claim that the Internet Standards process takes place in an "ideal speech situation"; it claims only that the standards process closely approximates, and may in fact be, the "best practical discourse." And, as more fully described below, even if Part III is right about the legitimacy of the Internet Standards process, it makes only limited claims concerning the implications for other processes: that they look bad in comparison, and that one argument for their legitimacy--that they are the best one can do under the circumstances--is eroded. The existence of even one example of a functioning Habermasian discourse should inspire attempts to make other decisions in as legitimate and participatory a manner as possible.

    In another way, though, the objectives of this Article may be less modest. Habermas himself has argued that the liberal democratic systems with constitutional guarantees that protect basic human rights are, if not practical discourse in action, at least on the right track. Only a legal system based on human rights and popular sovereignty could produce legitimate rules. Habermas writes approvingly of the work of John Ely, Frank Michelman, Cass Sunstein, Bruce Ackerman, and other modern U.S. constitutional theorists. He praises them for addressing the countermajoritarian dilemma by suggesting that the Supreme Court's key role is to police the fundamental procedural regulations that define access to the political system, such as voting and free speech. Habermas does not appear, however, to believe that the U.S. political system successfully engages in the practical discourse required to legitimate rules, only that it shares features with such a system. Indeed, so far as I am aware, there has not been to date a documented example of an important contemporary rulemaking process whose procedures comply with the requirements of Habermasian discourse ethics.

    Part IV addresses other Internet standards processes, both informal and formal, in the spirit of critique informed by Habermas's writing and the example of the conformity of the IETF procedures to the requirements of discourse theory. This Part asserts that the Internet is a complex, predominantly self-regulating system. Although national governments and a few international agreements regulate certain aspects of the Internet, these regulations generally cover few of the technical standards and almost none of the social standards. Despite the general absence of applicable national or international law, the Internet is an orderly anarchy.

    Decisionmaking concerning fundamental issues of Internet management (including both technical matters and issues of social propriety) is primarily by consensus. The processes of consensus formation and action based on consensus take several forms, notably:

    • "negotiated consensus": explicit consensus or near-consensus reached after negotiations open to all interested parties with the capacity and stamina to participate. The primary location for the development of this consensus is the IETF, an unincorporated association of ever-changing membership;
    • "market consensus": de facto technical standards are created by the mass adoption of a particular product or standard considered superior to its competitors;
    • "delegation": a trusted party, often an individual or small committee, is considered sufficiently knowledgeable or reliable to monopolize the task of making decisions, which are then implemented, sometimes automatically, by others. The trusted party is usually a self-selected volunteer, and is almost never elected;
    • "mass revenge": Internet participants react to a perceived threat by either ostracizing or, in more extreme cases, launching electronic attacks (for example, "email bombings") on persons who fail to comply with certain fundamental social norms. A milder form of the same sanctions is used to enforce "netiquette."

    Although some of these informal standards processes exhibit attributes of the best practical discourse, few adhere to it as well as the IETF. The outcomes of most of these processes, therefore, do not enjoy the same legitimacy as those of the IETF.

    Similarly, merely claiming to adopt procedures modeled on the IETF procedures does not make an institution's decisions legitimate. This is demonstrated by a critique of an increasingly assertive Internet standards body, ICANN. ICANN claims to be a consensus-based technical coordination and standards body; it clothes itself in legitimacy akin to that of the IETF, but in fact ICANN cannot share in the IETF's legitimacy. Part IV suggests that if the Internet Standards process has special legitimacy, then it follows that its special virtues are worth preserving, and that alternate Internet governance models lacking the IETF's virtues should be viewed with caution.

    Finally, Part V offers some preliminary speculation about the ways in which new technology might help widen, deepen, and enrich Habermasian discourse, although recognizing that this outcome is anything but inevitable. The Internet supports a variety of new tools that show a potential for enabling not just discourse, but good discourse. While it is far too soon to claim that the widespread diffusion and use of these tools, or their successors, might actualize the best practical discourse in an ever-wider section of society, it is not too soon to hope--and perhaps to install some software.


    § IV.F.3: Learning from ICANN

    The contrast between ICANN and the IETF teaches several things. The first is that people understand that claiming kinship with the IETF model is a way of claiming legitimacy, but that not everyone who makes this claim is entitled to do so.

    ICANN started out claiming that it would make decisions by consensus. It described the various structures under the Board as a means of forging or recognizing a consensus, and the Board was to be akin to the IAB, a final check that things had been done properly. It quickly became clear, however, that there would not be consensus on the contentious issues facing ICANN, or at least that consensus would not form quickly enough for a body that felt pressure to report substantial progress within a year or two.

    Almost immediately, ICANN abandoned consensus-based decisionmaking. It continued, however, to pay lip service to the concept and also to claim that its actions were based on consensus, including controversial decisions on matters as diverse as revising its bylaws, determining whether individuals (as opposed to corporations, nonprofits, governments, and NGOs) would have any voting power and a formal place in the organization, and crafting new dispute policies aimed at cybersquatters. Critics noted that ICANN manipulated the term "consensus" to suit its needs, but the Board and staff were unmoved.

    ICANN's processes do not--and given the history of their creation, could not--conform to Habermas's stringent requirements for the formation of morally compelling norms. Employing a rhetoric reminiscent of discourse ethics, ICANN is using complex and often rushed procedures to make decisions about key Internet standards and defining "consensus" in a way materially different from the IETF's procedures, and indeed different from what "consensus" seems to mean in ordinary contexts. As a result, ICANN's procedures lack the moral high ground occupied by the Internet Standardmaking procedures that they displace. It should be noted, however, that the key participants in the system ICANN replaced had come to feel that the old system was breaking down under pressure from parties who were imperfectly represented in it, and that something had to change.

    ICANN's inability to find true consensus has several sources. One is the genuinely contentious nature of the subject matter. People involved in the ICANN process have sharply conflicting economic and political goals. These divisions are more difficult to bridge than the average question regarding the definition of a software protocol: some people want a lot of new top-level domain names created; others want none. Many people want the lucrative assignment of rights to manage the most attractive names. Trademark interests were able to get ICANN to adopt rules favoring them in disputes with registrants of coveted domain names; registrants' representatives objected, but with very little success. Given the nature of the subject matter, it is not at all evident that consensus was achievable. It is also clear, however, that ICANN's commitment to consensus was substantially constrained by other imperatives, notably the intervention of newcomers to the debate, motivated by strategic concerns such as profit maximization for their firms. To them, the DNS debate was not primarily political or social, not part of the public sphere, but part of the economic sphere. When some parties feel a duty to act strategically in the interests of their clients, it is not, and in Habermasian terms it cannot be, a best practical discourse between autonomous moral and political agents engaged in a political, much less philosophical, discourse.

    The short and not completely happy history of ICANN might be read as evidence that the IETF model cannot be generalized, or is indeed headed for a period of jurisdictional shrinkage as bodies like ICANN move in on its turf. In this view, when large sums of money are at issue, and the affected stakeholders are not only diverse, but their interests are also at loggerheads, then consensus cannot be achieved and discourse ethics loses its relevance. I think this is the wrong conclusion. Discourse ethics is a fundamentally proceduralist theory. It requires actual or reasonably hypothesized consensus as to the procedure for making decisions, not the decisions themselves.

    The ICANN experience emphasizes the importance of being willing to listen. The IETF did not get its internal procedures right from the start. But when the membership protested in 1992 that the IAB was oligarchic and out of touch with the rank and file, the IETF changed its procedures to accommodate its concerns. In contrast, when ICANN's membership elected a candidate to the Board that the majority distrusted, ICANN's reaction was to change its bylaws to emphasize *855 that "members" were not legally members and then to eliminate the at-large electoral mechanism entirely.

    ICANN also serves as a reminder of the special value of the IETF as a model of procedural consensus, if not necessarily as a rigid template. ICANN's chief failures have been in institutional design. It is particularly striking how little ICANN, unlike the IETF, uses the Internet as a tool for making decisions. Of course, just because something relates to or uses the Internet does not tell us much about its ability to generate legitimacy. ICANN's decisions are made at quarterly Board meetings held on four different continents. Decisions of the Board and of many of the ICANN- supporting organizations occur at the physical meetings. Very few members of the Board, and even fewer of the staff, participate either in the public online fora hosted by ICANN or in the unofficial ICANN fora. In contrast, the IETF recognizes that participants cannot attend its equally far-flung meetings, and subjects everything discussed in person to ratification in an online discussion. In this, at least, ICANN's failures were not inevitable.


     
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