 Our next presenter is David Post who is going to be talking about Jefferson's moose and I'm sure he's going to explain what the hell he means by that. No? No? Oh well. Catch him afterward. David is a professor of law at Temple University's Beasley School of Law. He's a fellow at the Center for Democracy and Technology and also the Institute for Information Law and Policy at New York Law School and he perversely insists on his book being called in search of Jefferson's moose notes on the state of cyberspace. David? So I'm here mostly to really to hear what other people have to say about this issue. The Internet Governance thing is starting to feel a little bit to me like been doing this for a while and it does feel a little bit now like what the SOPA felt like about six months before SOPA became SOPA you know before it really exploded. I think I'm not sure I have made a great deal of headway actually on the Internet Governance problems. I think I have some of the questions ironed out but but not the answers which I hope is useful. I spent a decade or so writing a book about Jefferson about how one might think in a Jeffersonian way about the Internet and about what it means to think in a Jeffersonian way about anything. Jefferson had many interesting ideas about governance about how you design a system to govern and I learned many things far too many to cover in 15 minutes. Some I had been expecting some I hadn't. In the latter category I learned that for Jefferson governance was in large measure a scaling problem. How do you scale up Republican governance was for Jefferson the central governance question of the age. It was pretty well understood how you could operate a republic at small scale, how you could make the principle of Republicanism, Republican governance just a fancy phrase for the idea that power and sovereignty reside ultimately in the citizens and that the governors work for and on behalf of and at the sufferance of the governed and not the other way round. How you could make that work in small communities. History gave many examples of successful republics at small scale. Athens, Sparta, Medieval Florence, Venice, the Swiss Cantons, many others. The citizenry in those places did indeed exercise ultimate power and it was exercised face to face in public assemblies. The New England town meeting being a paradigm example. The Athenian Agora, the Roman Comedia Cantoriata. But nobody knew how to scale that up. Nobody knew how to scale that up. To cover a large territory. A territory as big as say the state of Virginia or the state of Massachusetts. Let alone a territory that stretches from the Atlantic to the Pacific. A territory so big that nobody in the late 18th century had the faintest idea actually how big it was. It was a really difficult problem. How can you possibly gather everybody in one place so that they can rule? And if you can't gather everybody together in one place, how can they rule? It had never been solved in human history. Not even close, actually. The Romans, I think I'll give them close. But they failed on this. They failed on the extended republic. There had never been a far-flung republic. Empires, yes, republics, no. It was such a difficult problem, in fact, that a lot of people thought in the late 18th century that it was impossible. Many very smart people. Montesquieu's Law, it was called. You could govern large territories only from the top as an empire or a kingdom ruled by a single sovereign. You couldn't have government by the people. Republican government at anything close to the scale we were talking about in the United States. Or at least not at the scale Jefferson was talking about. Because Jefferson had the continent-wide far-flung republic in view from the very start, from the get-go. When very few others did. Because, as I said, it was a really difficult problem. And it is worth reminding ourselves of this from time to time, that it was not foreordained, to put it mildly, that republican governance in which the people are sovereign and the ultimate repository of power to determine the rules under which they live, that republican governance could stretch from one end of the continent to the other. But it does. And it is truly one of the great intellectual achievements, I think, of all time. It is on par with your intellectual achievement. The B Minor Mass or the Sistine Chapel. It was not, of course, all Jefferson's doing, certainly. But his role in it was, in fact, immense. From the very obvious, the Louisiana Purchase, the Lewis and Clark expedition, to the less obvious, the Northwest Ordnance, which I discovered was Jefferson's handy work, I hadn't known that. To the not obvious at all, his schemes for widespread public education, canal building, all sorts of other things. So he is a good guy, I think, to look to for some ideas about internet governance. To a Jeffersonian, the problem of internet governance looks like another scaling challenge is upon us. Somehow, the challenge is to get republican governance again to scale up. How do we implement this basic principle that we all take for granted? That we are all entitled to an equal right to determine the rules under which we live? How do we implement that, not just at continental scale, but now at global scale? How do we do that? I don't know. A lot of people are saying it is impossible. You know, world government, it can't work. But I think they're wrong, again. I don't know what these institutions look like, but I think I know the questions I want to ask of them. So let me talk a little bit. Let me bring this down to earth with the discussion about the ITU proposal to make this a little more concrete. First of all, I incorporate everything verbatim that Andrew McLaughlin said in his talk. Just insert here. He made the case in 10 minutes, and I couldn't have said it better about why the ITU is not the right institution in which to lodge any sort of internet governance power. That's sort of the low-hanging fruit, I think. The real question is against what principles or yardsticks or criteria do we measure it any proposal for internet governance to know whether it's a good one or a bad one? This issue is going to be coming back, and it won't be the ITU the next time. I mean, there are, this issue is, it is in play, I think. And I'm trying to think through the principles that I will apply to evaluate the next one, now that the ITU is probably in fact not going to, as we said, take over the internet. Let me try to be clear about what I mean by internet governance. Internet governance discussions, as I said, I've been at them for 20 years, and they always have this weird quality that no one is quite sure what the subject matter of the discussion actually is. What is internet governance? What does it look like? How would I know it if I saw it? Who is governing at the moment? Through what means? Are they doing it well? Poorly, do we need more of it? Whatever it might be. As an aside, I think that the fact that the debate has been confusing and plagued with misunderstandings was probably inevitable. Governance questions are always difficult. See spring comma Arab and crisis comma Euro. And internet governance questions are, if anything, more difficult and more complex. They certainly are less familiar. The internet is a global phenomenon unlike any other in human history. I'm glad that I no longer have to support that with much that we all accept that, at least those in this room, I think. And mapping our notions of governance onto it would be no simple task, even if there were not a multiplicative languages in which the discussion necessarily is taking place. In these early days of the global network, and it is the early day of the global network, it is hardly surprising that the conversation has been a difficult one, confusing one. What I'm talking about when I say internet governance are the processes by which rules that are binding or that purport to be binding across the entire internet are made. Internet governance questions therefore include where are those rules made? How are they made by whom and under what authority? It's a narrower definition than many use by design. I think internet governance questions are complicated enough without overcomplicating them. It does not, internet governance does not encompass every rulemaking process that produces rules that can affect somebody's use of the internet. It encompasses only those rulemaking processes that produce rules affecting everyone's use of the internet and communication over the internet. ICANN is engaged in internet governance. The IETF, I think, is engaged in internet governance, at least to the extent that they produce rules binding on all users of this network. Chinese internet censorship policy, United States copyright infringement, online copyright infringement law, Mexican tax regulations regarding internet transactions, the city of Nairobi's acceptable use policy for its public schools. All of those affect users' activities on the internet, but they do not and do not purport to bind users across the internet as a whole. They raise important governance questions, but they're not internet governance questions, at least not to me, unless and only to the extent that they purport to bind users across the whole network. The definition also includes, excludes questions about the substance of those rules. I think that in internet governance consciousness, it's not about how much hate speech, how is it to be protected or punished, or what's the proper scope of copyright protection, or how much public or private surveillance. These are all deeply important questions. But again, they're not governance questions, and therefore not internet governance questions. Governance questions are of the form who decides the extent to which hate speech should be punished, and who decides the proper scope of copyright protection, and who describes the proper scope of private or public surveillance. So where to begin evaluating a proposal like the ones before us about the ITU, what would good internet governance look like? Here's as far as I've gotten on these difficult questions. Principle one, I start with the same principle I start with for all governance questions, with what I take to be the first principle of governance, that because we are all created equal, we have an equal right to participate in those processes that produce rules that bind our subsequent conduct, and that therefore, all internet users have an equal right to participate in the processes by which they can be bound. I don't regard this, by the way, as a liberal value. It is a self-evident truth, at least one of our founding documents declares it to be a self-evident truth, and a self-evident truth needs no argument to support it, and cannot be contradicted by argument. It is a self-evident truth. I start there because frankly, I don't know where else to start. On what basis would user X have a greater say over user Y in internet governance? And if this encompasses everybody on the planet, so be it. That will make scaling a very difficult challenge, but it does not, to me, call the principle into question. So the first question I ask of a proposal regarding internet governance is what assurances are there that this allocation of power will generate rules that reflect the views and preferences of all internet users weighted equally? Now, of course, no institution will ever actually achieve that. No institution achieves that in real space. But in both places, on the net and in real space, that is the yardstick against which we measure governing institutions. How close do they come to that aspirational ideal? Any proposal to lodge additional rulemaking power in the ITU fails miserably on this score. Indeed, any proposal to lodge internet rulemaking power in an institution composed of and controlled by individual states is very troublesome on this criterion. Leagues of states have a familiar problem, the small state, large state problem. Individuals within the small states have a greater voice than individuals within the latter. Even if all states, nation states themselves fairly reflected the views of those on whose behalf they purport to speak, which is a preposterous assumption in current reality. But even if they did, the wildly unequal waiting within an institution like that distorts the equality principle and at least shifts the burden onto the proponent of any such proposal to explain why that institution might be expected to produce rules consonant with the equality principle, the rules that internet users collectively would want. I think there is actually a consensus on this from the first panel. I think Andrew and Milton were saying very much the same thing. Principal number two. There will still be a role for state institutions. They are actually very effective mechanisms of dealing with the scaling problem where they can be, but they cannot be the answer to the question of internet governance standing on their own. Principal number two is that power corrupts. Control over the processes by which rules that are binding across the internet get made is an immensely and unimaginably valuable thing. Valuable in terms of dollars and cents and valuable for any number of other reasons, not so easily monetizable. Imagine as a thought experiment that this power to govern the internet were actually located somewhere in one place or one institution. Many people will want to control that place or that institution for private or parochial interests. So the second question I ask of a governance, internet governance proposal is what assurances does it provide that whoever is asserting, seizing, proposing to assert or sees that power or some portion of it will not abuse it. There is an affirmative case to be made for governance, but the negative case comes first. It establishes a kind of presumption of harm that needs to be overcome by any proposal's proponents. ICANN remains very troubling to me on this score. It is not clear to me what does prevent ICANN from abusing the power that it has over the domain name system. I think up to this point it has largely been fear of the United States government coming in and whacking them in the ass. As that becomes less and less true, I need to be convinced that they are not in a position to abuse their power and I'm not at the moment. That leads quickly to principle three, which is these assurances about the, to assure us that an institution will not be abusing its power in internet governance documents and text are not self-executing. Words on the page cannot satisfy. I don't really care what the ITU says it's going to do or not going to do. I care about the actual mechanisms that will prevent it from doing harm. Where harm is defined as it must be in accordance with the first principle as that which is defined in accordance with the views and preferences of all internet users weighted equally. Where are the checks on power? So I've got the questions lined up, I think. Those are the questions I ask of governance proposals and as I said I have no answers to them, but I just have to stop at this point. Questions? Can I take your question or two? No time for questions. Thank you.