Imagine a world where a large conglomerate of multi-national companies get to control the electromagnetic spectrum, not just in the U.S., but worldwide. They decide who gets to broadcast, the rates charged for broadcasting licenses, and because they believe in “human rights,” some politically incorrect content isn’t allowed to be broadcast.
Since this conglomerate is a private actor and not part of the government there are no First Amendment ramifications from their actions and they may do as they please as regards content restrictions.
But, it’s cool because they have put together an international multi-stakeholder group which will oversee things and ensure that the conglomerate doesn’t do anything to damage the interests of the community that uses and relies on the spectrum.
Not many would be in favor of such a governance structure. Despite its faults, many of which are serious in nature, we are in a better position having the Federal Communications Commission (FCC) control the spectrum than we would be if an international conglomerate with no First Amendment concerns were to control it.
Yet, this is exactly what the Obama Administration is preparing to do in the context of Internet governance. Currently, the U.S. Department of Commerce exercises oversight over the domain name system through a contract with the Internet Corporation for Assigned Names and Numbers (ICANN), a California non-profit organization. The functions performed by ICANN under this contract make sure that your computer is taken to the correct website when you type a website name into your browser.
ICANN also gets to decide, with U.S. government oversight, whether to open up new generic top level domains (gTLDs, such as .com, .net, .org, etc.) in a process that is similar to opening up new sections of the spectrum for use. If the FCC decides that a certain portion of the spectrum is available for a particular type of use they hold an auction for it. ICANN performs a similar function for new gTLDs. In their respective situations, both entities engage in actions that monetize property, providing for commercial use of that property.
In the spectrum governance context the government (FCC) directly performs these functions. In the Internet governance context these functions have been delegated, pursuant to a contract, to ICANN. The Commerce Department as the contracting party for the government oversees the functions performed by ICANN.
The Obama Administration has proposed, and is working hard, to relinquish the U.S. Internet governance oversight role and turn ICANN loose from the Commerce Department. This would essentially make ICANN the governing entity rather than the U.S. government.
Removing Internet governance from under the oversight of the U.S. has the distinct potential for allowing pressures on ICANN that cannot be withstood. All entities with governance responsibilities over a given subject matter area are subject to influence and pressure from the outside. This is the case whether the governing entity is the U.S. Congress, the Environmental Protection Agency, or your local home owners association.
The scope of the authority wielded by the entity with governance responsibilities will in large part determine the universe of persons and entities seeking to influence it. While the home owners association may only have a few individual owners or perhaps a potential vendor that attempts to influence it, other governing entities that have control over much more substantial areas are by their very nature a target to be influenced by a larger universe of lobbyists. After all, the affected universe in the latter situations is larger. Hence, the universe of those seeking to influence such a governing entity will be large.
In the Internet context, the universe of potential lobbyists is enormous.
If you worry about the U.S. government being subject to lobbying pressures, imagine the difficulty that a non-profit organization will have in resisting those pressures. This is especially the case given the massive property interests controlled by ICANN.
Just as we should not relinquish the U.S. government control over the spectrum, and the associated property interests to a non-profit, we similarly should not relinquish the U.S. Internet governance oversight role, and the associated property interests, to one. There is too much at stake, and no real benefit to be had from any such relinquishment.