Usually one good way to resolve a dispute among many parties is to have a mediator help everyone come to an agreement on something.  But the disparity between the way governments work and the way the Internet operates has only widened in the last year.  Now, the Internet Society's lead policy spokesperson says that governments won't be able to solve issues like piracy as long as they come at them from a standpoint of control.

Intellectual property theft, U.S. Vice President Joe Biden has frequently declared, is theft.  His theme would appear to indicate that, if we treated the issue plainly, the solution would be a plain and simple one.  The problem is, plain and simple solutions applied to the Internet often have complex consequences and uncontrollable repercussions.

Newly reinstalled Russian President Vladimir Putin has proposed what he perceives to be a plain and simple solution to a host of Internet problems, including piracy and freedom of accessibility.  Essentially, Mr. Putin would redeclare the Internet a telecommunications medium like any other, and reassign its governance to the International Telecommunications Union - the multi-country standards and policy department of the United Nations, and an agency in existence since the 19th century.  Putin's response to critics thus far sounds a little like that of a not-so-distant predecessor:  If you think you have a better solution, put it out there and let's see if it works or if we will bury it.

One person whose job it is to respond to that specific challenge, is Sally Wentworth.  Having served in the White House Office of Science and Technology Policy under President George W. Bush, and before that, eight years crafting Internet policy for the State Dept., perhaps no other person knows more about balancing the conflicting interests of the Internet's multiple stakeholders, both in governments and the private sector.  Now Wentworth serves as Senior Manager for Public Policy at the Internet Society (ISOC), the coalition of guidance and governance bodies that collectively - if often unofficially - determine how the Internet works and what it stands for.  In a candid and exclusive interview with ReadWriteWeb, part 1 of which appears today, she states that the "plain and simple" solutions that governments like Russia and the U.S. have proposed thus far, are inadequate and incompatible with the way the Internet works.  But she adds that whatever means the Internet develops to resolve such issues in the future may require us to accept some measure of compromise - perhaps even enough to bring a smile to a certain Russian president who never smiles.

Sally Wentworth, Regional Bureau Director for Public Policy, ISOC:  I think we have never said that governments don’t have a role. Certainly, governments and policy makers could be considered stakeholders as part of a multi-stakeholder process. One challenge of the approach that Mr. Putin is suggesting is that the ITU itself is not a multi-stakeholder forum. There is no provision within the ITU context, for example, for civil society... for groups other than the telecom industry and member states. Perhaps there’s a long way to go before we get to true multi-stakeholder, but I think clearly that those impacted by the decisions need to have an opportunity to be heard and be part of the discussion, have access to the information, and have a voice. That has not been the case in the proposal that Mr. Putin is putting forward.

Scott Fulton, ReadWriteWeb:  Well, certainly from the vantage point of someone who sees the business world from a fairly Russian perspective, it’s easier to imagine the telecommunications industry having closer ties with the government - almost the same way that the Postal Service has ties with our government... So it would seem that, if you’re going to involve the telecommunications industry, at some point you’re going to have to deal with government interests as they relate to the telecom industry in those countries, wouldn’t you agree?

SW: Well, I think there are two different questions there. In one dimension, certainly government policy makers have a role in the Internet policy space. They have obligations to their people to protect consumers, conduct law enforcement, protect free speech... But obviously, the telecom industry, throughout much of the world, has been privatized. We see this trend having emerged for many years, especially since the ITRs [International Telecommunication Regulations] were renegotiated. [In Russia], there is a close tie between the telecom industry and the government. I think that’s a true statement. That isn’t true throughout the world. In the Internet industry, it is almost exclusively privatized. So there are a lot of stakeholders, there’s a lot of diversity. And that has to be preserved in any discussion about Internet public policy.

RWW: I know that one of the metaphors Mr. Putin likes to use is that, as we emerge into a more virtual world, our rules about law and enforcement don’t really need to shift all that much.  Just as we would expect to have law enforcement policing us in the real world, we should have a similar expectation about law enforcement policing us in the virtual world. He would go so far as to say, just as you’d expect a cop to pull you over on a highway, surely you’d expect law enforcement to be able to reroute you around something that’s wrong on the Internet superhighway. How would you respond to that, knowing that you and the Internet Society have to both represent the interests of major stakeholders like Russia, as well as those governments and private interests that would argue the converse, that the best Internet is a free Internet where no rerouting takes place at all?

“A treaty is a static approach to a constantly evolving technology. And I think that isn’t going to ultimately solve the problem.”

- Sally Wentworth, Regional Bureau Director for Public Policy, The Internet Society

SW: I think Mr. Putin is suggesting that the Internet operates similarly or precisely like any other physical infrastructure - that traffic goes from point A to point B, and that somehow government as a gatekeeper would be both effective and efficient. The Internet architecture, when you step back and look at it, doesn’t work that way. Just from an architectural perspective, that would be inconsistent with basic fundamentals of routing, of moving traffic around a global network of networks. Clearly, then, we have the added concern with that approach, which is, what would that mean for the global Internet as a resource for global communications, for the free flow of information, for the ability of people to recognize their human rights as set forth in the U.N. Declaration on Human Rights - the ability to impart information regardless of frontiers?

I think Mr. Putin’s approach, at least as you’ve described it, would have real problems from an architectural perspective and the technical layer of the Internet, as well as from [the vantage point of] what the Internet really is: a medium for global communication.

RWW: We obviously had this same argument take place in the United States, at least to some extent, with respect to the SOPA legislation that failed Congress. Certainly, legislators felt they had an obligation as representatives of the public trust to be able to reroute traffic around anything that was either a known perpetrator or a suspected one - the argument against that being, the Internet architecture doesn’t work that way. So maybe we dodged that bullet. Then again, the problem does remain that we do have a tremendous amount of intellectual property theft taking place online, from relatively few sources. And there are congressmen who would ask, if you can’t just put a roadblock in front of them, what can we do?

SW: Again, I think we have to go back to the concept that the Internet is a global network of networks. It is not an architecture that confines itself to traditional, national boundaries. Part of the challenge, of course, with the SOPA legislation - and there were a host of challenges with it - was that the mechanism they were trying to put in place (essentially, fiddling with the DNS infrastructure) could not have achieved the goals they were trying to achieve. But it also was inconsistent with this notion that the Internet really is global. So by tinkering around the edges of something like this, you really wouldn’t be addressing the problem that you were trying to solve.

In an area like the topic of downloading of illegal content, I think one of the real solutions to that is in the area of international cooperation. We’re not going to solve this on a country-by-country level. We really do need to come together, both for the technical community, industries - there’s a wide swath of industries that have interest here - and also with law enforcement, to find ways to address this challenge without undermining the basic principles that make the Internet work.

RWW: I think most countries would agree that trafficking in illicit content is illegal under somebody’s national law. And I suppose the problem you’re pointing out here is that national law cannot apply, in a broad sense, to the Internet, which is a global entity. If that’s the case, if there really can be no “global law” that can effectively say, “If you are doing this trans-nationally, you are in violation of something,” then is there not some type of treaty that needs to be negotiated internationally? And shouldn’t that treaty look something like the Anti-Counterfeiting Trade Agreement?

SW: I think the challenge there is, if you’re looking at a technology like the Internet, it’s constantly evolving. There are new challenges, new opportunities, new innovations. But it is a technology that doesn’t stand still. So that kind of treaty-like approach tends to suggest that you can take a snapshot and apply the static approach, which is what a treaty is - a static approach to a constantly evolving technology. And I think that isn’t going to ultimately solve the problem.

Having said that, there is clearly room for cooperation, and actually, it’s happening to a considerable extent, between law enforcement agencies across the world. There is considerable technical industry-led collaboration that’s happening in real-time, to address real problems as they arise. So the challenge now is illegal downloading. Perhaps we’ll see another challenge in two years, and it’s hard to think that a treaty that’s a snapshot of a moment in time is going to allow that kind of evolution, in innovation and also in the problem-solving that needs to happen.

“I think Mr. Putin’s approach... would have real problems from an architectural perspective and the technical layer of the Internet, as well as from [the vantage point of] what the Internet really is: a medium for global communication.”

- Sally Wentworth

RWW: So in a sense, there’s kind of a technical fallacy for treaties to be able to apply to any type of evolving system of telecommunications, then. If I understand the way you’re explaining it to me, a treaty can only explain the current state of affairs - you used the term “snapshot.” And I know you’ve had experience at the State Dept., so you would have first-hand knowledge of how such snapshots are built. Would we need perhaps a kind of snapshot as an interim method, something that could take us through the next five years, to give a majority of law-abiding nations, and nations that respect each other’s laws and treaties, some time to hammer out more of a collective agreement on how they can better police each other’s citizens with respect to the use of each other’s intellectual property, in a way that’s more evolving and more capable of adapting to new modes of operation than ACTA?

SW: In some ways, we have that in the U.N. Declaration of Principles that came out of WCIT [World Conference on International Telecommunications], Phase I (2003) and Phase II (2005). If you go back and look at those, you’ll see a recognition of both the opportunities of the information society, but also some of the public policy challenges that were beginning to emerge then, but are still emerging today - intellectual property, the need to preserve cultural diversity, the need to protect freedom of expression, the need to address the integration of cybersecurity. You will see in there a framework for international cooperation with regard to these things, for both the opportunities and challenges.

That, in some ways, is perhaps what you’re talking about. That took a tremendous amount of time and energy to negotiate, as you might recall. The question is, do we need to do that all over again, or do we need to move forward with the actual cooperation? Because countries have agreed to do that. I’m just not sure that a treaty is the best mechanism to accomplish that end.

RWW: You’ve argued that there are proposals going on [emerging from] WCIT that would place further restrictions on Internet cooperation, and operations between Internet stakeholders. Could you explain those a bit, and perhaps distinguish them from the act of negotiating a treaty?

SW: If you step back and look at what the International Telecommunications Regulations are, dating back to 1988 and, in fact, much further than that, it’s a framework through which countries could exchange telecommunications traffic across borders. If you think of where we were in 1988, they are - as you would expect - a snapshot of the era. This is an era where you have traditional telecom operators - in many cases, government owned; in some cases, government operated.  We didn’t have independent regulatory agencies, relatively little competition in terms of end user services and devices. But since then, obviously global communications has shifted dramatically, and countries, quite naturally, are trying to see how they can update the treaty.

One of the problems that has emerged is, there’s the perspective on the part of some countries that the Internet is simply another telecommunications service, and can therefore be regulated as such - that it can be regulated in the same way, and with much the same rules, as the telecommunications networks of 1988, in terms of numbering, routing, settlements of business relationships, security provisioning, etc. So when we look at some of the proposals that have come forward by governments, what we see is this tendency to say, “This is how we regulated point-to-point communications in the telecommunications era of 1988; we should just simply expand that approach to include the Internet.”

We see some proposals, for example, to simply apply the accounting rate regimes that have been governing the telecommunications space, to IP traffic. We’ve seen proposals to regulate routing of traffic for purposes of directing “security and fraud.”  There are a host of proposals about numbering, which may or may not include IP addressing. There’s actually some 200 pages of proposals, which is quite a heavy read. But this is what has come forward from member states.

An alternative approach to this could be to say, what has worked in the area of telecommunications since 1988?...  The things that have been effective have clearly been things like competition. We’ve seen privatization of services, tremendous innovations with respect to the role of regulators. We have independent regulators today; we have regulatory transparency. These are concepts that are not reflected in the treaty. So we’re trying to make sure we can put forward the vision of perhaps what could be included in a treaty. We’re also stating some fairly strong concerns about some of the proposals that have come forward already.