<nettime> froomkin: toward a critical theory of cyberspace

[t byfield <tbyfield@panix.com>]

     [i can't resist noting that this looks a tad more interesting
      than galloway's cliff's notes on 'computer protocols and how 
      they establish control in the seemingly anarchical Internet.'
      the PDF is at <http://www.discourse.net/ils.pdf>. --cheers, t]


<http://www.icannwatch.org/article.pl?sid=03/01/16/057208>

     Toward a Critical Theory of Cyberspace (and ICANN too)
     posted by michael [froomkin]
     on Friday January 17, @06:00AM
                                         
     I've published an article, Habermas@discourse.net: Toward a Critical
     Theory of Cyberspace, 116 Harv. L. Rev. 749 (2003), arguing that the
     IETF is not just a good model for decision making, but that it
     actualizes Jeurgen Habermas's discourse theory.  Since one of the main
     criticisms of Habermas's work is that his prescriptions are mere
     idealizations, and not workable in real life, this is a more
     substantial claim than it may seem.  The article is not primarily
     about ICANN, although it does compare ICANN to the IETF somewhat
     unfavorably.
     
     I've attached the table of contents and the Introduction (minus the
     footnotes) so you can get the flavor of it before deciding if you want
     the whole 830K .pdf file.  The introduction is a bit long, but then
     the whole thing clocks in at a svelte 125 pages.   I've also attached
     the concluding part of the ICANN section (also sans footnotes).

Table of Contents

     INTRODUCTION 
  
 I. HABERMAS ON DISCOURSE THEORY 
 
  A. Critical Theory 
  B. Substantive Criteria
  C. Discourse Ethics and Practical Discourses 

 II. THE INTERNET STANDARDS PROCESS: A DISCOURSE ABOUT DISCOURSE 
 
  A. What Is the Internet? 
  B. A Short Social and Institutional History of Internet Standard-Making
 
     1. The Prehistoric Period: 1968-1972
     2. Formalization Begins: 1972-1986
     3. IETF Formed, Further Formalization: 1986-1992
     4. Institutionalization and Legitimation: 1992-1995 
 
      (a) The Internet Architecture Board (IAB) 
      (b) The Internet Engineering Task Force (IETF)
  
     5. The Internet Standard Creation Process Today (1996-Present)  

 III. The Internet Standards Process as a Case Study in Discourse Ethics
 
  A. The IETF Standards Process as the Best Practical Discourse 
  B. Counter: The IETF Standards Process Is Too Male and Monolingual 
     To Be the "Best" Practical Discourse 
  C. Counter: It's Too Specialized To Matter 

    1 . The Claim that the IETF Is "Technical" and Thus Outside the
        "Public Sphere." 
    2. The IETF Debates Whether an RFC Is "Law." 

  D. Can the IETF Example Be Generalized? 
 
 IV. APPLICATIONS: CRITIQUES OF INTERNET STANDARDS FORMED OUTSIDE THE IETF 

  A. Noninstitutional Standard-Making 

    B. Socialization and the Reproduction of Non-Hierarchy 
    C. Delegation: The Usenet Example 
 
      1. Mass Revenge/Vigilante Justice: The Usenet Spam Problem and Its
         (Partial) Solution 
      2. The Usenet Death Penalty 
 
   D. Responses to Email Spam 
   E. Market-Induced Standardization 
   F. ICANN: The Creation of a New Governance Institution 
 
      1. Why ICANN Matters 
      2. ICANN's Legitimation Crisis 
      3. Learning from ICANN 
 
 V. TECHNOLOGIES FOR DEMOCRACY  
 
  A. Hardware for Democracy  
  B. Weblogs and Blogs  
  C. Wiki Webs and Other Collaborative Drafting Tools  
  D. Slash and Other Collaborative Filtering Tools  
  E. From Open Government to Community Deliberation Tools  
 
 VI. CONCLUSION  

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Introduction

   In what has been called "a monumental achievement . . . that
provides a systematic account of major issues in contemporary
jurisprudence, constitutional theory, political and social philosophy,
and the theory of democracy," Jürgen Habermas has proposed 
discourse ethics as the basis for testing the legitimacy of legal
institutions.  Habermas seeks to identify and explain a method for
justifying valid law and legal institutions, or at least the
procedures necessary to make legitimate law.  His approach blends an
abstract theory of justice with a sociological theory of law that is
grounded in empirical observations.  Attempting to bring moral
philosophy into the realm of political science, Habermas seeks nothing
less than to describe a system that can validate moral choices,
notably those about how society should be organized.  Habermas
proposes a way to identify norms that are presumptively legitimate
because they were reached according to morally justified procedures.
In so doing, Habermas directly confronts the most difficult obstacles
to moralizing about social organization, including the fact/value
distinction, false consciousness, and the injustices and imbalances
caused by unequal distributions of power and knowledge.  The outcome
of this inquiry is of enormous relevance to the construction and
legitimacy of the legal system, especially because Habermas argues
that only a social system that guarantees basic civil rights and
enables meaningful participation by all those affected by a decision
can make legitimate decisions. 

  In the spirit of Habermas's project of linking sociological
observation with legal philosophy, this Article offers an analysis of
the Internet standards processes--complex nongovernmental
international rulemaking discourses.  This Article suggests that one
of these discourses is a concrete example of a rulemaking process that
meets Habermas's notoriously demanding procedural conditions for a
discourse capable of legitimating its outcomes. This unusual discourse
is conducted by the Internet Engineering Task Force (IETF), which uses
it to set the basic technical standards that define Internet
functions. 

  Identifying a practical discourse that meets Habermas's conditions
does not by itself prove the truth of Habermas's procedural theory of
justice. Rather, it removes the potentially crushing empirical
objection that the theory is too demanding for real-life application.
If Habermas's account of procedural legitimation is right, it should
be capable of application. Conversely, if it were impossible to
conduct a decisionmaking process in the manner that Habermas argues is
necessary to legitimate outcomes, then his theory of justice would be,
at the very least, incomplete.  

  Standards discourses are but a tiny fraction of the conversations
enabled by the Internet.  This Article does not suggest that discourse
on the Internet as a whole meets Habermas's condition for the
generation of legitimate rules, limiting its claim to only a much
smaller, slightly more formalized, set of cooperative procedures that
make the other Internet discourses possible. Still, even one
documented example of discourse ethics in action may disarm the
oft-heard criticism that the Habermasian project cannot be achieved in
practice.  

  Habermas's work provides a standpoint from which social institutions
that fail to live up to his very demanding standards can be critiqued
in the hopes of making them more legitimate and more just.  Armed with
evidence that Habermasian discourse is achievable, this Article
surveys other Internet-based developments that may approach the
Habermasian ideal or, as in the case of the Internet Corporation for
Assigned Names and Numbers (ICANN), that already claim a special form
of legitimacy.  This Article finds most of these other standard-
setting procedures wanting in comparison to the IETF. 

  Habermas seeks not only to define when a rulemaking system can claim
legitimacy for its outputs, but also to describe tendencies that
affect a modern society's ability to realize his theory. Speaking more
as a sociologist than a philosopher, Habermas has also suggested that
the forces needed to push public decisionmaking in the directions
advocated by his philosophy are likely to come from a re-energized,
activist, engaged citizenry working together to create new small-scale
communicative associative institutions that over time either merge
into larger ones or at least join forces.  Like Habermas's idea of a
practical discourse, this has the ring of something that may sound
fine in theory but is difficult to put into practice. New technology
may, however, increase the likelihood of achieving the Habermasian
scenario of diverse citizens' groups engaging in practical discourses
of their own.  Technology may not compel outcomes, but it certainly
can make difficult things easier. Although it is far too early to
claim that the Internet will realize this Habermasian vision, this
Article suggests how new Internet tools might, in time, help actualize
this scenario.  

  Part I of this Article outlines a portion of Habermas's theory of
discourse ethics that is suitable for empirical testing, and situates
these elements of Habermas's work in the larger context of critical
theory.  Part II is a social and institutional history of the IETF's
Internet Standards process; it argues that participants in the IETF
are engaged in a very high level of discourse, and are
self-consciously documenting that discourse and its procedures. 

  In light of the description provided in Part II, Part III argues
that the IETF is an international phenomenon that conforms well to the
requirements of Habermas's discourse ethics.  In short, Part III
asserts that one element of the Internet Standards process meets
Habermas's requirements for a practical discourse.  This is a very
limited claim.  Part III does not assert that discussion over the
Internet as a whole in any way complies with Habermas's ideals, and
indeed there is ample evidence in most discussion groups that it does
not.  Nor does Part III suggest that computer-mediated communications
are necessarily the harbinger of a new, more democratic and legitimate
regional, national, or international town meeting (although Part V
suggests that there are some encouraging signs that the private sphere
might be reorganized with the right tools and that this transformation
might have healthy effects on the public sphere).  Part III also does
not claim that the Internet Standards process takes place in an "ideal
speech situation"; it claims only that the standards process closely
approximates, and may in fact be, the "best practical discourse."
And, as more fully described below, even if Part III is right about
the legitimacy of the Internet Standards process, it makes only
limited claims concerning the implications for other processes: that
they look bad in comparison, and that one argument for their
legitimacy--that they are the best one can do under the
circumstances--is eroded.  The existence of even one example of a
functioning Habermasian discourse should inspire attempts to make
other decisions in as legitimate and participatory a manner as
possible. 

  In another way, though, the objectives of this Article may be less
modest.  Habermas himself has argued that the liberal democratic
systems with constitutional guarantees that protect basic human rights
are, if not practical discourse in action, at least on the right
track.  Only a legal system based on human rights and popular
sovereignty could produce legitimate rules. Habermas writes
approvingly of the work of John Ely, Frank Michelman, Cass Sunstein,
Bruce Ackerman, and other modern U.S. constitutional theorists.  He
praises them for addressing the countermajoritarian dilemma by
suggesting that the Supreme Court's key role is to police the
fundamental procedural regulations that define access to the political
system, such as voting and free speech. Habermas does not appear,
however, to believe that the U.S. political system successfully
engages in the practical discourse required to legitimate rules, only
that it shares features with such a system. Indeed, so far as I am
aware, there has not been to date a documented example of an important
contemporary rulemaking process whose procedures comply with the
requirements of Habermasian discourse ethics.  

  Part IV addresses other Internet standards processes, both informal
and formal, in the spirit of critique informed by Habermas's writing
and the example of the conformity of the IETF procedures to the
requirements of discourse theory.  This Part asserts that the Internet
is a complex, predominantly self-regulating system.  Although national
governments and a few international agreements regulate certain
aspects of the Internet, these regulations generally cover few of the
technical standards and almost none of the social standards.  Despite
the general absence of applicable national or international law, the
Internet is an orderly anarchy. 

  Decisionmaking concerning fundamental issues of Internet management
(including both technical matters and issues of social propriety) is
primarily by consensus.  The processes of consensus formation and
action based on consensus take several forms, notably: 
  
   * "negotiated consensus": explicit consensus or near-consensus reached
   after negotiations open to all interested parties with the capacity
   and stamina to participate.  The primary location for the development
   of this consensus is the IETF, an unincorporated association of
   ever-changing membership;    
   
   * "market consensus": de facto technical standards are created by the
   mass adoption of a particular product or standard considered superior
   to its competitors;    
   
   * "delegation": a trusted party, often an individual or small committee,
   is considered sufficiently knowledgeable or reliable to monopolize the
   task of making decisions, which are then implemented, sometimes
   automatically, by others.  The trusted party is usually a
   self-selected volunteer, and is almost never elected;    
   
   * "mass revenge": Internet participants react to a perceived threat by
   either ostracizing or, in more extreme cases, launching electronic
   attacks (for example, "email bombings") on persons who fail to comply
   with certain fundamental social norms.  A milder form of the same
   sanctions is used to enforce "netiquette."  

   Although some of these informal standards processes exhibit
attributes of the best practical discourse, few adhere to it as well
as the IETF.  The outcomes of most of these processes, therefore, do
not enjoy the same legitimacy as those of the IETF. 

  Similarly, merely claiming to adopt procedures modeled on the IETF
procedures does not make an institution's decisions legitimate.  This
is demonstrated by a critique of an increasingly assertive Internet
standards body, ICANN. ICANN claims to be a consensus-based technical
coordination and standards body; it clothes itself in legitimacy akin
to that of the IETF, but in fact ICANN cannot share in the IETF's
legitimacy.  Part IV suggests that if the Internet Standards process
has special legitimacy, then it follows that its special virtues are
worth preserving, and that alternate Internet governance models
lacking the IETF's virtues should be viewed with caution. 

  Finally, Part V offers some preliminary speculation about the ways
in which new technology might help widen, deepen, and enrich
Habermasian discourse, although recognizing that this outcome is
anything but inevitable. The Internet supports a variety of new tools
that show a potential for enabling not just discourse, but good
discourse.  While it is far too soon to claim that the widespread
diffusion and use of these tools, or their successors, might actualize
the best practical discourse in an ever-wider section of society, it
is not too soon to hope--and perhaps to install some software.


§ IV.F.3: Learning from ICANN

The contrast between ICANN and the IETF teaches several things.  The
first is that people understand that claiming kinship with the IETF
model is a way of claiming legitimacy, but that not everyone who makes
this claim is entitled to do so.

  ICANN started out claiming that it would make decisions by
consensus.  It described the various structures under the Board as a
means of forging or recognizing a consensus, and the Board was to be
akin to the IAB, a final check that things had been done properly.  It
quickly became clear, however, that there would not be consensus on
the contentious issues facing ICANN, or at least that consensus would
not form quickly enough for a body that felt pressure to report
substantial progress within a year or two. 

  Almost immediately, ICANN abandoned consensus-based decisionmaking.
It continued, however, to pay lip service to the concept and also to
claim that its actions were based on consensus, including
controversial decisions on matters as diverse as revising its bylaws,
determining whether individuals (as opposed to corporations,
nonprofits, governments, and NGOs) would have any voting power and a
formal place in the organization, and crafting new dispute policies
aimed at cybersquatters. Critics noted that ICANN manipulated the term
"consensus" to suit its needs,  but the Board and staff were unmoved.

  ICANN's processes do not--and given the history of their creation,
could not--conform to Habermas's stringent requirements for the
formation of morally compelling norms.  Employing a rhetoric
reminiscent of discourse ethics, ICANN is using complex and often
rushed procedures to make decisions about key Internet standards and
defining "consensus" in a way materially different from the IETF's
procedures, and indeed different from what "consensus" seems to mean
in ordinary contexts.   As a result, ICANN's procedures lack the moral
high ground occupied by the Internet Standardmaking procedures that
they displace.  It should be noted, however, that the key participants
in the system ICANN replaced had come to feel that the old system was
breaking down under pressure from parties who were imperfectly
represented in it, and that something had to change.

  ICANN's inability to find true consensus has several sources.  One
is the genuinely contentious nature of the subject matter.  People
involved in the ICANN process have sharply conflicting economic and
political goals. These divisions are more difficult to bridge than the
average question regarding the definition of a software protocol: some
people want a lot of new top-level domain names created; others want
none.  Many people want the lucrative assignment of rights to manage
the most attractive names.  Trademark interests were able to get ICANN
to adopt rules favoring them in disputes with registrants of coveted
domain names; registrants' representatives objected, but with very
little success. Given the nature of the subject matter, it is not at
all evident that consensus was achievable.  It is also clear, however,
that ICANN's commitment to consensus was substantially constrained by
other imperatives, notably the intervention of newcomers to the
debate, motivated by strategic concerns such as profit maximization
for their firms. To them, the DNS debate was not primarily political
or social, not part of the public sphere, but part of the economic
sphere. When some parties feel a duty to act strategically in the
interests of their clients, it is not, and in Habermasian terms it
cannot be, a best practical discourse between autonomous moral and
political agents engaged in a political, much less philosophical,
discourse.

  The short and not completely happy history of ICANN might be read as
evidence that the IETF model cannot be generalized, or is indeed
headed for a period of jurisdictional shrinkage as bodies like ICANN
move in on its turf. In this view, when large sums of money are at
issue, and the affected stakeholders are not only diverse, but their
interests are also at loggerheads, then consensus cannot be achieved
and discourse ethics loses its relevance.  I think this is the wrong
conclusion.  Discourse ethics is a fundamentally proceduralist theory.
It requires actual or reasonably hypothesized consensus as to the
procedure for making decisions, not the decisions themselves.

  The ICANN experience emphasizes the importance of being willing to
listen.  The IETF did not get its internal procedures right from the
start.  But when the membership protested in 1992 that the IAB was
oligarchic and out of touch with the rank and file, the IETF changed
its procedures to accommodate its concerns.  In contrast, when ICANN's
membership elected a candidate to the Board that the majority
distrusted, ICANN's reaction was to change its bylaws to emphasize
*855 that "members" were not legally members  and then to eliminate
the at-large electoral mechanism entirely. 

  ICANN also serves as a reminder of the special value of the IETF as
a model of procedural consensus, if not necessarily as a rigid
template.  ICANN's chief failures have been in institutional design.
It is particularly striking how little ICANN, unlike the IETF, uses
the Internet as a tool for making decisions.  Of course, just because
something relates to or uses the Internet does not tell us much about
its ability to generate legitimacy. ICANN's decisions are made at
quarterly Board meetings held on four different continents. Decisions
of the Board and of many of the ICANN- supporting organizations occur
at the physical meetings.  Very few members of the Board, and even
fewer of the staff, participate either in the public online fora
hosted by ICANN or in the unofficial ICANN fora.  In contrast, the
IETF recognizes that participants cannot attend its equally far-flung
meetings, and subjects everything discussed in person to ratification
in an online discussion.  In this, at least, ICANN's failures were not
inevitable.




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