Re: How the Internet got its rules

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Bob Frankston" <Bob19-0501 () bobf frankston com>
Date: April 7, 2009 12:56:37 PM EDT
To: <dave () farber net>, "'ip'" <ip () v2 listbox com>
Subject: RE: [IP] Re:     How the Internet got its rules

We need to be very cautious about generalizing from the success of the  
IETF. It’s success is very much related to the domain area – digital  
computing and connectivity which makes it feasible and even easy to  
tolerate experiments and failures, and to  reproduce and improve what  
works. It is not so much an international rulemaking body as a virtual  
water cooler where people gather to work out kinks.

We can look at IPv6 as an example of what happens when the body  
attempts to impose solutions. Fortunately it has limited ability to  
force adoption.

ICANN, in sharp contrast, is trying to be such a rulemaking body and  
seems to revel in the degree to which people continue to be dependent  
upon it like they are dependent upon the ITU and other agencies.


-----Original Message-----
From: David Farber [mailto:dave () farber net]
Sent: Tuesday, April 07, 2009 11:57
To: ip
Subject: [IP] Re: How the Internet got its rules



Begin forwarded message:

From: "Michael Froomkin - U.Miami School of Law"
<froomkin () law miami edu>
Date: April 7, 2009 11:24:38 AM EDT
To: David Farber <dave () farber net>
Cc: ip <ip () v2 listbox com>
Subject: Re: [IP] Re:   How the Internet got its rules
Reply-To: froomkin () law tm

IP Readers might also be interested in an article arguing that through
the RFCs the IETF created a rare example of a Habermasian rule system
that is both self-reflexive and legitimate.

Habermas () discourse net: Toward a Critical Theory of Cyberspace, 116
Harv. L. Rev. 749 (2003)

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=363840


Abstract:

In the spirit of Jurgen Habermas's project of linking sociological
observation with legal philosophy, this Article analyses the Internet
standards processes - complex nongovernmental international rulemaking
discourses. It suggests that the Internet Engineering Task Force
(IETF) standards discourse - a small, slightly formalized, set of
cooperative procedures that make the other Internet discourses
possible - is a concrete example of a rulemaking process that meets
Habermas's notoriously demanding procedural conditions for a discourse
capable of legitimating its outcomes. As evidence, the Article offers
a social and institutional history of the IETF's Internet Standards
process; and argues that participants in the IETF are engaged in a
very high level of discourse, and are self-consciously documenting it.
Identifying a practical discourse that meets Habermas's conditions
removes the potentially crushing empirical objection that Habermas's
theory of justice is too demanding for real-life application, although
it does not prove its truth.

Habermas's work provides a standpoint from which social institutions
can be critiqued in the hopes of making them more legitimate and more
just. Armed with evidence that Habermasian discourse is achievable,
the Article surveys other Internet-based developments that may
approach his 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 procedures
wanting and argues that 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.

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 institutions that over time either merge into larger
ones or at least join forces. Like Habermas's idea of a practical
discourse, this 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.

A number of new tools such as slash servers, blogs, wiki webs,
community filtering tools and e-government initiatives 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.


On Tue, 7 Apr 2009, David Farber wrote:

>
>
> Begin forwarded message:
>
> From: John Kemp <john () jkemp net>
> Date: April 7, 2009 8:54:20 AM EDT
> To: dave () farber net
> Subject: Re: [IP] How the Internet got its rules
>
> Hi Dave,
>
> Just to note that the links in David Isenberg's original email (now)
> point to different articles than the one on 'How the Internet got
> its rules". The correct link to Steve's op-ed appears to be:
>
> http://www.nytimes.com/2009/04/07/opinion/07crocker.html
>
> Regards,
>
> - johnk
>
>
>
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A. Michael Froomkin   |    Professor of Law    |   froomkin () law tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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