Faithful readers know of my geeky love for tech policy books. I read lots of 'em. There's a steady stream of Amazon.com boxes that piles up on my doorstop some days because my mailman can't fit them all in my mailbox. But I go pretty hard on all the books I review. It's rare for me pen a glowing review. Occasionally, however, a book will come along that I think is both worthy of your time and which demands a place on your bookshelf because it is such an indispensable resource. Access Controlled: The Shaping of Power, Rights, and Rule in Cyberspace is one of those books.

Smartly organized and edited by Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain, Access Controlled is essential reading for anyone studying the methods governments are using globally to stifle online expression and dissent. As I noted of their previous edition, Access Denied: The Practice and Policy of Global Internet Filtering, there is simply no other resource out there like this; it should be required reading in every cyberlaw or information policy program.

The book, which is a project of the OpenNet Initiative (ONI), is divided into two parts. Part 1 of the book includes six chapters on "Theory and Analysis." They are terrifically informative essays, and the editors have made them all available online here (I've listed them down below with links embedded). The beefy second part of the book provides a whopping 480 pages(!) of detailed regional and country-by-country overviews of the global state of online speech controls and discuss the long-term ramifications of increasing government meddling with online networks.

In their interesting chapter on "Control and Subversion in Russian Cyberspace," Deibert and Rohozinski create a useful taxonomy to illustrate the three general types of speech and information controls that states are deploying today. What I find most interesting is how, throughout the book, various authors document the increasing movement away from "first generation controls," which are epitomized by "Great Firewall of China"-like filtering methods, and toward second- and third-generation controls, which are more refined and difficult to monitor. Here's how Deibert and Rohozinski define those three classes (or "generations") of controls:

Lots of good things in The Washington Post today following up on U.S. Secretary of State Hillary Clinton's historic address last week about the importance of global Internet freedom. First, The Post has published a powerful supporting statement from Sweden's Minister of Foreign Affairs, Carl Bildt, entitled, "Tear Down These Virtual Walls." Bildt notes that:

Two decades ago a wall made of concrete, built to divide the free and unfree, was torn down. Today it is the freedom of cyberspace that is under threat from regimes as keen as dictatorships past to control and limit the possibilities of their citizens. They are trying to build firewalls against freedom. At the end of the day, I am convinced they are fighting a losing battle -- that cyber walls are as certain to fall as the walls of concrete once did.

He then goes on to argue that, following Secretary Clinton's address last week, "We should now forge a new transatlantic partnership for protecting and promoting the freedoms of cyberspace. Together, we should call for all these walls to be torn down." He continues:

Much like the way the rule of the law is critical to protecting the freedoms we enjoy as citizens in our societies, and international law protects the peace between our nations, we must seek to shape the rules that will protect the rights and the freedom of cyberspace.

Importantly, The Washington Post itself also editorialized today about "The Internet War."

This morning at the Newseum in Washington, DC, U.S. Secretary of State Hillary Rodham Clinton delivered remarks on Internet freedom and the future of global free speech and expression. [Transcript is here + video.] It will go down as a historic speech in the field of Internet policy since she drew a bold line in the cyber-sand regarding exactly where the United States stands on global online freedom. Clinton's answer was unequivocal: "Both the American people and nations that censor the Internet should understand that our government is committed to helping promote Internet freedom." "The Internet can serve as a great equalizer," she argued. "By providing people with access to knowledge and potential markets, networks can create opportunities where none exist."

Unfortunately, however, "the same networks that help organize movements for freedom... can also be hijacked by governments to crush dissent and deny human rights." Echoing Winston Churchill's famous "iron curtain" speech, Sec. Clinton argued that "With the spread of these restrictive practices, a new information curtain is descending across much of the world." She noted that virtual walls are replacing traditional walls in many nations as repressive regimes seek to squash the liberties of their citizenry. That's why the Administration's bold stand in favor of online freedom is so essential.

Importantly, Sec. Clinton made it clear that the Obama Administration is ready to commit significant resources to this effort. She said that, over the next year, the State Department plans to work with others to establish a standing effort to promote technology and will invite technologists to help advance the cause through a new "innovation competition" that will promote circumvention technologies and other technologies of freedom. Sec. Clinton also challenged private companies to stand up to censorship globally and challenge foreign governments when they demand controls on the free flow of information or digital technology.

That is particularly important because Secretary Clinton's speech comes on the heels of the recent news that Google and at least 30 other Internet companies were the victims of cyberattacks in China, which raises profound questions about the future of online freedom and cybersecurity. Sec. Clinton's remarks will make it clear to online operators that the U.S. government stands prepared to back them up when they challenge the censorial policies of repressive foreign regimes.

Several of us have cautioned against inviting the government to regulate broadband services because of the dangers of regulatory creep. Once the government has its regulatory claws in the flesh of a service, neither cost, common sense, nor custom will restrain it.

Congress has regulated broadcasting for eighty years. That regulation started, of course, simply to deal with interference between and among various stations. It has since expanded to include, just by way of example, a prudish regulation of content the government regards as indecent, rate ceilings for advertisements by the ruling class (i.e., political electioneering spots), and a failed attempt to dictate what is "fair" and "unfair" when it comes to the coverage of controversial issues.

But regulatory meddling along the lines just mentioned at least involves matters of some weight. A bill just passed by the House demonstrates that there are no practical limits to such meddling and that no matter is too inconsequential when it comes to state oversight of an industry. Congress now, we have learned, wants to regulate the volume of broadcast advertisements.

The bill is the brainchild of Congresswoman Anna Eshoo (D-CA), who apparently is offended that some televised advertisements are louder than the programs that precede them. Now the whole effort is silly, to say the least, and volumes could be written on just how nonsensical it is. How, for instance, does anyone know what the metaphysically correct volume for an advertisement is? Must the volume of an exploding bomb to be the same as that of a whisper? More fundamentally, is this really a national priority? What effect will this have on something that might actually be important in a rocky economy, such as job losses in an already struggling industry? One could go on seemingly indefinitely asking questions probing for some inkling of serious import in this bill, but that effort, itself, would be senseless.

There is a larger point, however, that is worth highlighting. The Eshoo bill points out just how nitpickingly insidious government regulation can become. That's why I am astounded that commentators and groups who purportedly care about free speech would be so willing to ask for government regulation of the Internet - the great modern engine of liberty and free speech.

Whatever its faults, the market responds pretty quickly when private enterprises behave in ways that a significant number of people find offensive or inappropriate. The same cannot be said for the State. If the government starts regulating the Internet, and it starts getting it "wrong" or overstepping (which Rep. Eshoo's bill suggests is all but inevitable), it will be near impossible to rein it in. The greatest threats to free speech are not from companies that provide services in response to public demand, but from the levers of state power manipulated by those who are sure they know better than the rest of us what content we should or should not be able to access, how we access it, and just how loud it should be.

Rod Beckstrom took over as ICANN President/CEO on July 1, 2009, so October 9 marked his 100^th day in office--and a good opportunity to examine the progress made by ICANN during his short tenure. Of course, the ICANN community (Board, staff and stakeholders) deserve credit for their hard work prior to Rod's appointment, which made ICANN's recent achievements possible. But to borrow an analogy from American football: when you have the ball in the Red Zone, you need to score touchdowns, not field goals. So far, under Rod's leadership, ICANN has moved down the field on a number of issues. In particular, ICANN scored a "touchdown heard round the world" by bringing the MoU/JPA to a successful conclusion.

Drinking from a Fire Hydrant

While Rod is no stranger to the technical sector, he was by no means an ICANN insider and getting up to speed on the myriad of issues confronting ICANN is no easy task. But since taking office, he has demonstrated an impressive willingness to listen to an almost unlimited number of sources, both within and outside the ICANN community, and to synthesize a sophisticated understanding of ICANN's mission and how that mission is perceived globally. In conducting this outreach, Rod has engaged contracted parties (registrars and registries), the business community, national and international organizations, the non-commercial community, and individual stakeholders via Twitter.

Affirmation of Commitments

Over much of the last 12-18 months, ICANN and the United States Government (USG) appeared to be engaged in a high-stakes game of chicken, seeing who would blink first regarding the expiration of the MoU/JPA. The Affirmation of Commitments (AOC), which succeeded the MoU/JPA, produced no clear winner or loser, but a win-win-win situation for ICANN, the USG and the broader Internet community by building into the ICANN governance framework increased accountability to the global private-public stakeholder community. It would be unfair to the many other participants in the AOC negotiations to give Rod sole credit. But he certainly does deserve credit for using this defining moment in ICANN's continued evolution as an opportunity to both reinvigorate participation by long-time ICANN stakeholders such as myself and to engage new stakeholders in the ICANN process.

[caption id="attachment_22110" align="alignright" width="180" caption="Louis XVI"][/caption]

Americans often quote, or allude to, the French expression "Le Roi est mort, vive le Roi!" But few realize that this apparent paradox was meant quite literally by the French:From its first official proclamation in 1422 upon the coronation of Charles VII to 1774, when Louis XV finally died, the term expressed the abstract constitutional concept that sovereignty transfered from the old king (the first "Le Roi") to the new king (the second "Le Roi") the very instant the old king died. Thus, France was literally never without a king until until the monarchy was finally dis-established in early 1793. When Louis XVI was guillotined later that year, his death was acclaimed simply with "Le Roi est mort!"

Yesterday, September 30, ICANN's Joint Project Agreement with the Department of Commerce finally terminates. "Le JPA est mort!" But a new agreement (the "Affirmation") took its place, apparently providing more accountability than the JPA ever did. Vive l'Affirmation! There may come a day when, like Louis XVI, ICANN's JPA-like agreement with Commerce terminates and nothing is there to replace it, but that day has not yet come.

Grant Gross has a great piece on this new agreement. Grant extensively quotes my PFF Adjunct Fellow (my ICANN mentor and former ICANN board member) Mike Palage, who explained that the JPA's successor (JPA II?):

will tell [ICANN] what it should do, but it can't legally bind them [much like past agreements]... It gives the appearance in the global community that the U.S. government has recognized that ICANN has done what is was supposed to do. What it's also doing is ... it's putting in some accountability mechanisms."

Yet Palage expressed concern about the new agreement:

Now while the devil will be in the detail, the only concern I have is that the private sector be on equal footing with the public sector in being able to hold ICANN accountable... If ICANN is to remain a public-private partnership that is founded on the principles of openness, transparency, inclusiveness, accountability and bottom-up coordination, then both the private and public sectors should have equal confidence in the accountability mechanism available to them.

Mike explained how to choose the "Right Path to a Permanent Accountability Framework" in a PFF paper in August, and has explained a clear vision for ICANN 3.0.

By Michael Palage & Berin Szoka

Over the next month, the ICANN Board will consider its options for ensuring that some framework is in place to ensure ICANN's accountability to the global Internet community after the approaching expiration of its Memorandum of Understanding and Joint Project Agreement (MOU/JPA) with the U.S. Department of Commerce. We analyze these options in our new paper, "Choosing the Right Path to a Permanent Accountability Framework for ICANN."

We urge the ICANN Board to allow the time necessary for the development of a permanent accountability framework in consultation with the global Internet community, as required by ICANN's Bylaws. The authors caution the ICANN Board against rubber-stamping a recent proposal to essentially make the MoU/JPA a permanent instrument as inadequate to ensure ICANN's long-term accountability. The alternative, simply ending ICANN's relationship with the U.S. Government, would raise serious legal questions concerning ICANN's ability to collect fees from registrars and registries and the transfer of property rights underlying the domain name system.

We conclude by calling on ICANN's new CEO Rod Beckstrom to exercise the kind of leadership he advocated in his 2005 book, The Starfish and the Spider: The Unstoppable Power of Leaderless Organizations, which explains the advantages of decentralized managerial "nervous systems" ("starfish") over top-down hierarchies ("spiders"):

Instead of focusing on 'spider'-esque permanent instruments with a single government, Beckstrom and the ICANN Board should focus on more 'starfish'-like solutions that both continue the USG's stewardship role and involve more governments that want to participate in the unique private-public partnership known as ICANN--without compromising ICANN's guiding principles and commitment to private sector leadership. Only this outcome will ensure the long-term viability of ICANN as a global trustee of the Internet's unique identifiers.

A series of recent applications for national trademark rights in terms that correspond to likely strings for new top-level domain names, or TLDs, (e.g., ".BLOG") highlight just one way in which ICANN's new generic TLD (gTLD) application process is likely to be "gamed." But it is also a strategy to which some trademark holders may feel compelled to resort to defend their rights to that string. Unfortunately, it does not appear that ICANN is addressing these important public policy considerations. In fact, based upon some of the provisions in the proposed draft registry agreements, it appears that ICANN staff's actions may increase, rather than decrease, the ambiguity that opens the door to such gaming of the system.

Click here to download my latest paper on this subject (below), published by The Progress & Freedom Foundation, or click here to read more of my recent work at PFF.

In order to facilitate a "people-centered, inclusive, development-oriented and non-discriminatory Information Society," the Economic and Social Council of the United Nations recently released a report to enhance cooperation on issues related to the Internet. The most important bits are located in the annex, under the heading, "International Telecommunication Union." On pages 9 and 10, addendums to the current gTLD and ccTLD regimes are outlined.

• gTLDs: "In the case of Internet governance-related public policies that diverge from international law and treaties, an intergovernmental organization could serve as the forum for discussions and agreements between the parties concerned."
• ccTLDs: "Any difference that may arise between the two entities could be resolved through an international/intergovernmental organization with the necessary mandate."

Together, these changes, if implemented, could put the ITU in the role that ICANN currently occupies, as the technical coordinating body responsible for managing the Domain Name System. While ICANN is far from perfect, its basic model is far superior to any United Nations model. The way to make Internet governance more accountable is to "get back to basics" in building an ICANN 3.0, as PFF Adjunct Fellow Mike Palage has suggested--not turning the whole system over to a far less accountable, lumbering globalist bureaucracy.

My colleague, Berin Szoka, worries about 195 independent countries each regulating the Internet:

[I]t's likely to cause, at the very least, many companies to limit access to their sites or services by persons from countries with burdensome regulatory approaches. Even if those foreign laws are well-intentioned and laudable... the result could be to balkanize Internet services.

Szoka argues that Americans are better off because Congress or the federal courts can override burdensome regulation by the States. Others are worried too, and not just about the Internet. Financial regulators have long sought to harmonize regulations across borders, with the European Union leading the way. Szoka would prefer less regulation to harmonization, but if local regulators will not stay their hands voluntarily, a single set of regulations seems preferable to many overlapping, and often contradictory, regulatory regimes.

Yet the question remains of what these regulations should be. The Nobel Laureate Friedrich von Hayek argued that the perfect laws cannot be designed but must evolve over time through a process of trial and error. Americans are better off, not because the federal government can override regulation but because the States are, as Justice Louis Brandeis put it, "laboratories of democracy." Americans have the benefit of trying 50 different regulatory approaches and allowing the market to decide which approach works best.

One could easily look at the Internet today and see that the many different standards and protocols in use are wasteful and burdensome. Yet the many competing standards, and the continuous innovation that drives them, are the engine of growth in the Net economy. Picking a single standard and enforcing that standard would cause innovation to stagnate. Likewise, the burden imposed by competing regulatory regimes is outweighed by the benefits of innovation in the market for law.

Rather than creating a need for standardization in the law, globalization makes regulatory competition more effective. Some companies will choose not to offer content or services in countries with burdensome regulations but this will send a strong signal to those countries to change their regulations. Countries with effective regulations will be able to attract businesses more easily thanks to the web and other countries will have more incentive to replicate the most successful rules.

Competition is likely to lead to less burdensome regulation, so much so that many advocates for harmonization are concerned about a "race to the bottom." Competition can override the preferences of governments - websites around the world are hosted on American servers because the U.S. has stronger Free Speech protections - but not of consumers. Evidence from financial markets (subscription) has found that consumers are attracted to jurisdictions that offer strong protection of property rights: both from fraud and deceptive business practices, and from special interests who can corrupt the law to their own ends.

The Internet has, and will continue to, create new challenges for lawmakers which even the brightest economists and legal scholars will not be able to answer. As tempting as it is to assume we have all the answers, be it less regulation or better regulation, only trial and error can tell us for sure which approach is best.