Stand off: EU Commissioner Viviane Reding (left) is leading the charge to internationalize Internet governance. The Bush administration isn’t having any of it. European Community

FOREIGN POLICY: What is causing the rift between the United States and Europe over control of the Internet and what do you think will be the outcome of the summit in Tunis?

Lawrence Lessig: The largest cause of this rift is European distrust of the United States. It’s not particularly related to the Internet. The Europeans are eager to stand up to the Americans, and that I think has been produced by the last five years of U.S. foreign policy. It’s not really a cyberlaw problem.

From what we know right now, three different things could happen [at Tunis]. The Europeans could get it together and actually invoke the authority to exercise control over Internet governance, displacing the [Internet Corporation for Assigned Names and Numbers, or] ICANN position. The Americans could find a way to buy them off. Or, there could be a stalemate. But what’s interesting is, in 1998, there was no question of the Europeans taking over because there wasn’t the level of skepticism of the U.S. government, even though there was a lot of skepticism about ICANN at the time.

FP: The EU and several countries say that their “nuclear option” would be to set up a rival ICANN, resulting in two standards for the Internet. Do you think that’s a realistic scenario?

LL: Let’s talk about what that would mean. Right now, there is a limited number of root servers that point to the primary root server from which you get propagation for everything in your general top-level domain (TLD). So there’s a .com server that serves 13 other servers that then propagate all changes in the .com name. And the same thing is [true] for every other TLD—.org, .ing, [.edu, etc.]

From the beginning, people have talked about building an Internet that wouldn’t depend upon the TLD hierarchy. It doesn’t mean there would be two or three Internets, but that you would have a domain name system that wouldn’t depend upon hierarchical naming. As long as there’s coordination across hierarchies about ownership of domain names, you wouldn’t necessarily produce any destructive results. One could query a hierarchy for the answer to the question “Who owns Lessig.com?” and then ask another hierarchy if we don’t get an answer from the first one. So it is possible for different systems to evolve that would allow the Europeans to control one part and the Americans to control another without destroying the ability of the Internet to continue to function the way it does now.

What people are afraid of is that there will be a split within the single hierarchical system which would result in two different populations of the dot-com domain name system existing out there. Then there would be a real conflict. My view is that if in fact there is a separation like that, there are a lot of incentives for these two separate roots to figure out a way to coexist. There would be lots of anger [when] you realize that you’re not getting the IBM.com you expected. But there’s no reason why you couldn’t have multiple root systems.

FP: Some say a shift away from ICANN would empower countries such as North Korea, China, and Iran to censor or control the Internet. Is that an accurate criticism?

LL: The ability to facilitate censorship is independent of the question of who owns the roots. Say we have the system we have now and China wants to censor it. It builds a list of IP addresses it won’t serve content to or won’t allow to be shown on its servers, and then it basically uses that list to filter all IP packets that come across the Chinese network. If the world had two roots, one China-controlled and one U.S.-controlled, then it would be one step simpler for China to censor because it could filter its own root. But it would still have to do the same things it does now with regard to the U.S. root content. The technology you’re using to censor is not necessarily tied to the architecture of the root name.

FP: Do you see international governance of the Internet having an impact on the free flow of ideas and commerce on the Web?

LL: I’ve been a critic of ICANN for a long time, especially in its early stages. But I think what it’s trying to do now is pretty close to what it ought to be doing, which is just trying to serve technical functions in the narrowest possible way. They’ve resisted a lot of policy work that they could have been doing.