Internet Legal Practice Newsletter (ILPN) Speaks with Albert Gidari
June 23, 1997
Albert Gidari, Jr. is a partner in the Seattle office of Perkins Coie and Executive Director of the Internet Law & Policy Forum. For more information about the Internet Law & Policy Forum, visit the ILPF web site at http://www.ilpf.org.
ILPN: For our readers who are not familiar with the ILPF, what are the basic goals of the organization and what is its basic structure?
AG: The ILPF has one major goal: to foster the growth of Internet electronic commerce and communications. To do so, the ILPF strives to "fill the gaps" between existing law and technological development by recommending practices, procedures or policies that, if adopted, would reduce the uncertainty and risk associated with doing business on the Internet.
ILPF is a "virtual" organization. It receives administrative support from the Electronic Commerce World Institute in Montreal, Canada, and the Discovery Institute in Seattle, Washington. I serve as the Executive Director for daily operations. The member-company representatives serve as a high-level Board of Directors and often serve on working groups. The working groups are ad hoc committees of experts who are brought together to address a particular issue of concern. These working groups are the heart of ILPF and generally are co-chaired by a legal expert and a technology expert in the given field. The product of the working groups is approved by the members and then distributed through the ILPF web site.
ILPN: What is the history of the ILPF? Who was involved in forming the organization?
AG: The concept of ILPF was first articulated by Peter Harter, now public policy counsel for Netscape Communications. In response to the passage of the Communications Decency Act, Harter proposed a legal analog to the IETF for law and policy so that governments would be educated about the Internet before acting, perhaps foolishly, and so industry could anticipate and act before such laws were passed. At the same time, Jeffrey Ritter of ECLIPS was calling for an international Internet organization to promote self-regulatory efforts and the development of an Internet law of electronic commerce. I proposed that these visions be combined and presented at a conference sponsored by the Discovery Institute in Seattle in October 1995 called the Internet Law Symposium. The response was overwhelming from the audience. Several months later, representatives from 25 Internet-centric companies met in Mountain View, California to discuss the formation of ILPF. Jeffrey Ritter became the organizing chair. From there, the ILPF has been evolving as the Internet itself evolves.
ILPN: What is your relationship with the ILPF?
AG: I am the current Executive Director and manage the daily operations of the ILPF. While I maintain my full-time electronic commerce and Internet law practice as a partner with Perkins Coie in Seattle, Washington, my partners have agreed that this work is important and therefore don't complain too much over the time it takes. In essence, the ILPF position is pro bono or a professional activity for me.
ILPN: The ILPF is sponsored by some of the most prominent names in the Internet industry (including Microsoft, Netscape, and others). What distinguishes the ILPF from other Internet trade organizations? How does it remain independent?
AG: ILPF is not a trade organization. It has no lobbying arm and its primary functionaries - the working groups - go home when the project is completed instead of lingering in the halls of some government agency. Its distinguishing features are that ILPF brings a cross- and inter-disciplinary approach to Internet legal issues. Every working group has a technical co-chair because we believe one of the significant flaws in current Internet policy-making is the absence of sound, technical advice and understanding. Our membership is global because it is important to reflect the global nature of the Internet in decision-making and to appreciate that the Internet means different things in different places, particularly given the variance in development and connectivity of networks.
ILPF is independent because its working groups are not influenced by the source of funding. The working groups themselves need not know who proposed the particular project or who contributed to it. The focus of the group is on the work, not who it pleases. But ILPF does begin with a bias in favor of growth of electronic commerce and communications. In the end, the work product gets judged by the global community as having market value or not. That is the true test of independence.
ILPN: The ILPF's literature speaks of the organization's being a resource center for legal materials pertaining to electronic commerce. Has the ILPF already made such information available in this way? What type of material will be available and how will it be accessible?
AG: ILPF has experimented with the concept of an Internet clearinghouse. The idea is still under discussion. The ILPF website, however, is being utilized as a resource center for each working group. When a working group is commissioned, part of the instructions are to identify appropriate web resources so that the ILPF web page can be the best center for links or information about the topic. Our web site, frankly, has been moribund for a few months as we have re-tooled it to serve this function. Within the next two weeks, however, the work product of ILPF to date and significant resources on certificate authorities, digital signatures and content blocking will be available to the general public.
ILPN: Is the focus of the ILPF primarily to facilitate industry self-regulation or to assist in the process of drafting legislation? If self-regulatory, do you imagine the ILPF having any regulatory function similar to a professional organization? Or is the organization a forum for other organizations to discuss possible self-regulation?
AG: ILPF is not a governance organization and has no intention of being one. It is a forum to convene discussion groups on any topic approved by the members for a working group. Facilitating self-regulation may be a appropriate goal of a project, but such facilitation in some cases may only be possible through uniform regulation so one goal of a working group might be to prepare model legislation. It may be that the ILPF role in a particular project is nothing more than providing a venue to discover and discuss best practices associated with a particular Internet activity such as ISP handling of junk email. Thus, the purposes and scope if ILPF are quite broad and variable.
ILPN: What international organizations now in existence, if any, come closest to providing a model for how the ILPF will function?
AG: There really are no comparative models around today. The closest examples are standard setting organizations such as ISO or IETF because ILPF seeks to produce compelling analyses that become legal or policy standards through a consensus-driven, working group process. But obviously, legal analysis is not like preparing or agreeing upon a technical standard. So, we are cutting a new path, which may help to explain the evolution of ILPF and its incremental steps onto the global stage.
ILPN: One of the basic assumptions of many organizations like the ILPF is that global commerce will be best facilitated if governments adopt a non-regulatory approach to the Internet and, what the White House Draft Document on global commerce calls, a "duty-free environment whenever products or services are delivered across the Internet." How will the ILPF react to foreign governments that perceive this sort of trade free-for-all as a danger to vulnerable domestic industries?
AG: The Internet itself poses a threat to all existing regimes and organizations. ILPF's role is to anticipate the changes and provide a path of certainty through the flux so that Internet commerce will continue to grow. Part of the answer may be simply to educate governments that in the Internet Age there are no longer "domestic" industries. The other part may be to recognize that a colorful slogan like an Internet "duty-free trade zone" really does not mean that traditional taxation does not apply. The point of the U.S. proposal is to avoid new bit-like taxes that could be imposed when existing tax agreements already capture the revenue from the transaction.
ILPN: What has the ILPF accomplished up to this point? What are the most immediate goals of the Forum?
AG: ILPF's first year was a test phase to determine whether its underlying assumptions had merit and could produce a useful product. The second phase began in April 1997 and we have produced and are distributing two excellent products, both of which will be on the ILPF website in two weeks, on certificate authorities and on content regulation. ILPF is now looking at working groups on digital signatures, certificate authority accreditation, junk email, and an expanded global inventory content regulation. These efforts should culminate in a major conference in January 1998 in Seattle, Washington.
ILPN: To what degree is the forum currently international in terms of its membership, its sponsors, and so forth? To what degree is this a goal of the ILPF?
AG: We currently have member representation from around the globe. For example, our membership includes Hong Kong Telecom, Fujistu, British Telecom, Deutsche Telekom and Americatel. We certainly want to expand the participation because the Internet is a global medium and everyone benefits from the consideration of issues from diverse vantage points.
ILPN: What kind of involvement would the ILPF like to encourage from interested Internet professionals, legal professionals and consumers?
AG: ILPF maintains a contact list for working group participation. We are pleased by the continued interest in the organization and encourage Internet professionals to provide us with their interests. Of course, because public Internet involvement in any ILPF product is important, we welcome comments on the work product of the organization.