The Internet today is very likely the largest and most successful cooperative venture in history. It has developed at an unprecedented pace, with an estimated 1.7 billion connections today. Although it began as a United States Government-sponsored program, less than 20 years ago it was “privatized.” The United States Government, through the Department of Commerce, maintains certain contractual relationships with non-governmental entities designed to maintain the “safety and security” of the Internet. Assistant Secretary Strickling is the responsible United States Government official. I would like to make two points today—one involving law and one involving policy.
The development has been organic—it has been “bottom up” rather than “top down.” The development has relied upon a mixture of voluntary and commercial efforts. From a jurisprudential perspective, it is noteworthy that the economic arrangements governing interconnection and the management of traffic have been worked out as commercial law matters.
This is rather unusual in the field of telecommunications, which historically has been subject to specialized laws that enable government regulators to prescribe prices and interconnection practices where more than one network is involved. These specialized laws arose in the context of competing networks. There was a possibility, realized in the case of network industries such as railroads and telephony, that rival networks would refuse to interconnect to gain a competitive advantage.
In the case of the Internet, however, the specialized communications laws have rarely been invoked and their applicability, in fact, is subject to some controversy. Rather, individual Internet backbone transmission companies reached agreement among themselves with respect to where and how they would interconnect and at what price, without government prescription or guidance. In general, large backbone companies have entered into "peering arrangements" with one another. They do not pay one another for the interconnections or for handling traffic that has originated on each other’s network. They invoice their customers and keep the proceeds for themselves. Smaller networks, however, do pay the larger networks for interconnecting with them and handling their traffic. This has come to be known as "transiting." In addition, conventions have been established with respect to the place at which one network will hand off traffic to another. In general, the industry has agreed that traffic handoffs will occur at the closest feasible point to the origination of the traffic, something that goes by the inelegant name of “hot potato routing.”
The very important point here is that commercial lawyers and their clients worked out a very elaborate economic regime that aligned the economic incentives in a way that has induced a remarkable and remarkably productive level of cooperation.
Ultimately, what is important is preserving the dynamism of the Internet. We want it to continue to evolve in accordance with advances in technology and changes in user demands.
What follows from this is the concern that remitting aspects of regulation or control of the Internet to an intergovernmental body such as the United Nations would inhibit the evolution of the Internet. It would bring unavoidable delay in decisions and it would risk the introduction of extraneous considerations.
As to the latter, we are particularly concerned that issues of censorship of unwanted material would enter into the debate. While we understand that there are some types of content that are offensive to all of humanity (e.g. child pornography), there are many other types of content that some, but not all, societies would find objectionable (e.g., religious discussions). As is well known (see, for example, President Obama’s Shanghai statement and Secretary Clinton’s January 21 speech), the United States is strongly in favor of freedom of expression and the free flow of information. But the concern here is not only that.
Rather, in a counter-factual world where intergovernmental approvals are required to implement change, arguments about political and cultural differences could be brought to bear in ways that will delay the implementation of useful improvements to the Internet.
In order to avoid damaging the organic quality of the Internet, but also to assure that all interested parties have an opportunity to raise Internet-related matters that they deem important, the Internet Governance Forum was created by the United Nations. It is an explicitly non-decisional, multi-stakeholder body. It has been in existence nearly five years and appears to be serving its intended purpose admirably. It is subject to extension following this September’s meeting in Vilnius, and the United States is strongly of the view that it should be extended.