My appointment to the IGF MAG

I’ve lost count of how many time I’ve applied to join the IGF’s Multistakeholder Advisory Group (MAG), but this year for the first time I’ve actually been accepted. Since I literally wrote the book on the IGF (well, the first such book, anyway), a number of people who supported my previous applications (thank you!) expressed confusion about why I have been turned down so frequently.

Because the MAG is (still, in 2018!) appointed through a “black box” system of selection by the office of the UN Secretary-General, it’s impossible to know for sure, but one factor is certainly that the lack of accountability inherent in that system, which makes it easy for candidates who are known to be troublemakers to be quietly excluded from consideration.

I plead guilty to being such a troublemaker. I’ve made as many enemies as friends since I began my involvement with the nascent IGF back in 2006, hoping that it could become a showpiece of inclusive, deliberative, multi-stakeholder governance that could develop recommendations on global Internet public policy that the Internet community had no other way of developing.

ICANN couldn’t do so due to its limited remit, other international institutions couldn’t do so due to their own democratic deficits, and individual nation states couldn’t legitimately or effectively do so because their borders didn’t map to those of the transnational network that they sought to govern.

So we ended up in the default position, still persisting today, that the Internet would be governed by a hodge-podge of badly coordinated rules, standards, norms, and practices decided largely by powerful companies and governments, on top of a hacked-together legacy technical infrastructure that, due to luck as much as foresight, still weakly favors open and decentralised solutions.

In this context the fact that the IGF has done nothing concrete to change the status quo by developing for itself an influential role in bringing stakeholders together to influence global public policy decisions that lawmakers, technologists, and companies make (or could make) in concert, has been for me personally, and remains, a disappointment.

In case anyone hoped otherwise, I won’t be changing my tune about that now that I’ve been appointed to the MAG. I’m going to be as much of a tiresome, incessantly critical jerk as ever. I don’t suffer fools gladly, but I’m even less accepting of those who lack imagination, backbone, or ambition. The MAG is full of such people. And I don’t really care what they think of me.

It’s going to be a fun year.

Is Multi-Stakeholder Internet Governance Dying?

Over the last three months of 2017, EFF has been representing the interests of Internet users and innovators at three very different global Internet governance meetings; ICANN, the Global Conference on Cyberspace (GCCS), and this week in Geneva, the global Internet Governance Forum (IGF). All of these to some extent or other are held out as representing a so-called multi-stakeholder model of Internet governance. Yet in practice there are such vast differences between them—with the GCCS being mostly government-organized, ICANN being mostly privately-organized, and the IGF falling somewhere in between—that it’s difficult to see what this multi-stakeholder model really represents.

This is one reason why EFF has generally eschewed promoting a particular model of governance by name, but rather has emphasized how fair processes with the characteristics of inclusion, balance, and accountability, can lead to better outcomes. Last month UNESCO issued a report [PDF] with a more detailed list of its own criteria of multi-stakeholder governance processes, according to which such processes should be inclusive, diverse, collaborative, transparent, flexible and relevant, private and safe, and accountable. The use of criteria such as these, rather than merely the application of the buzzword “multi-stakeholder”, enables us to critique how particular global meetings fall short in effectively involving users in the development of policies that impact them.

ICANN’s Multi-Stakeholder Model

For example, although ICANN is the organization with the least degree of control by governments, does that make it the most effective at protecting users’ rights? Not necessarily, because of the way in which its work is organized. As the Association for Progressive Communications (APC) has put it in their briefing on this year’s IGF meeting, “being influential in ICANN requires a degree of effort and consistency which is difficult to sustain.” Consequently, there is a strong tendency for ICANN working groups to be stacked with private sector stakeholders such as lawyers for intellectual property rights holders and the domain name industry, who are able to dominate discussions, to obstruct attempts at compromise, and to push for one-sided outcomes, such as the right for a single company to control a generic word domain.

As a result, ICANN, although notionally multi-stakeholder, in practice fails to fulfil the criterion of balance. Its processes do not place a priority on the facilitation of understanding and consensus between warring stakeholder groups, and this feeds politicking and strategic behavior. Even many industry stakeholders acknowledge this shortcoming; for example Jonathan Matkowsky, who works for a digital threat management company, said in an ICANN mailing list post recently, “It’s very sad to see the open Internet breaking down as a result of the multistakeholder process failing to work.”

The Multi-Stakeholder IGF Under Threat

The IGF falls short in different ways. One of these is the criterion of accountability. Management of the IGF is heavily dependent upon the office of the United Nations Secretary-General, which appoints the IGF’s Multistakeholder Advisory Group (MAG) in an opaque, top-down process, resulting in a top-heavy group dominated by government and industry. Originally, records of MAG deliberations were kept secret, although meeting minutes and mailing list archives have since been opened to the public.

Another way in which the IGF falls short is in failing to provide a clear pathway for the discussions that occur there to feed into the work that its stakeholders do elsewhere, such as the development of laws and regulations by governments, the development of of terms of service and policies by companies, and the design of software, standards, and tech by coders and hackers. This isn’t a separate criterion in EFF’s model of fair processes, but it is represented in the closing paragraph of our infographic on this topic, which we explain by saying “there is no point in inviting affected communities to help develop policies for the Internet if their recommendations are ignored”.

For example, although the IGF’s grassroots-organized Dynamic Coalitions can and do produce recommendations, such as the resolution on transparency in trade that the Dynamic Coalition on Trade and the Internet issued this week, the IGF itself has never done so, despite a paragraph in its mandate that requires it to be able to make recommendations, where appropriate. This is one factor has led many stakeholders, particularly from government and business, to abandon the IGF for alternative fora, and has made it difficult for the IGF to raise funds. It has even made it difficult for the IGF to find countries willing to host its meetings; in an unprecedented failure, the IGF Secretariat has yet to secure a host for its 2018 meeting, and was only able to hold a meeting in 2017 by hosting it at the UN office in Geneva.

What is Replacing the Multi-Stakeholder Model?

Why, you might ask, does it matter if a fairly obscure, 12 year old Internet governance forum loses support and goes away? Well, that really depends on where the IGF’s participants go instead. If this means that governments and business flock to less inclusive institutions such as the International Telecommunications Union (ITU) to develop rules and policies for the Internet, that could end up being profoundly dangerous for users.

More or less, that seems to be what is happening, as governments are increasingly bypassing civil society and concluding agreements directly with companies. The increasing treatment of Internet public policy issues in closed, opaque trade negotiations at regional levels and at the World Trade Organization (WTO) is one example of this. There are also governments pushing at the Working Group on Enhanced Cooperation of the Commission on Science and Technology for Development (CSTD) for the establishment of a new, government-led multilateral mechanism for the oversight of Internet-related public policy development.

In November the Council of Europe concluded agreements with large tech companies and associations on human rights, democracy, and the rule of law. The Secretary-General of the Council of Europe Thorbjørn Jagland said in his speech at the ceremonial signing, “it is the first time the Council of Europe is also giving a formal, institutional role to the private sector, one which is open-ended allowing other companies and representative associations to join in the future.” The text of this agreement is not publicly available—at least, EFF requested a copy of it from multiple parties, and was told a month ago by the Council of Europe, “we’ll look into it”.

China’s Alibaba, now the world’s largest retailer, is also taking a larger role in global Internet governance, partnering directly with governments, but leaving civil society in the cold. It recently launched a pilot Digital Free Trade Zone as a a public-private partnership with the Malaysian government, and its CEO Jack Ma was also at last month’s WTO ministerial meeting in Argentina to announce a partnership with the WTO to create an Electronic World Trade Platform (eWTP).

True Believers in Multi-Stakeholder Models

That’s why there is merit in continuing to strive for the development and improvement of truly inclusive, balanced, and accountable global fora for the discussion of Internet policy issues, rather than allowing governmental and industry-only fora to dominate. This might mean a reinvigorated and improved IGF, or it might mean something new.

Microsoft has proposed this year that there should be a new Digital Geneva Convention on cybersecurity, and during this year’s IGF it gave further details of how it sees the initial draft of this document emerging from a multi-stakeholder dialog, although it would be finalized by governments in the same manner as a conventional international treaty. The proposal has received a mixed reception here in Geneva.

The Internet Society is incubating a project that aims to bring the multi-stakeholder model to the development of other policy issues, in an outcome-oriented fashion that has eluded the IGF to date. The project, which was approved as a pilot by the board of the Internet Society in November, aims to undertake three key activities:

  • Convening stakeholders to solve concrete problems and develop norms on a consensus basis,
  • Training stakeholders on how to be effective in multistakeholder discussions, and
  • Building and promoting academic research and writing on the multistakeholder approach.

Meanwhile a French civic enterprise called Missions Publiques is promoting its proposal for a Global Citizens Debate on the future of the Internet to be piloted across the world during 2018. The project would involve ordinary citizens coming together to actively deliberate on a concrete policy issue, the results of which could then feed back to policy makers at the IGF and other venues. The project is currently seeking support from governmental, private sector and civil society partners.

For our part, EFF’s Jeremy Malcolm is chairing a group that is developing an option paper for the IGF’s own Multi-year Strategic Work Plan Working Group, to investigate whether there are any such multi-stakeholder processes that the IGF itself could use, possibly incorporating one or more of the above external initiatives or partners, to improve its own ability to generate useful and actionable policy recommendations, while avoiding the problems of capture that have beset ICANN, or the democratic deficits of intergovernmental text negotiations.

The important thing is not whether a particular global policy forum such as the IGF lives or dies. None of the existing Internet governance forums is perfect, or close to it. But such fora will always be part of the global governance ecosystem, and whether they are inclusive, balanced, and accountable matters. The flaws of particular self-identified multi-stakeholder fora should be identified and addressed, using user-focused criteria such as those developed by EFF and UNESCO. And we should also remain open to the idea that new innovations in global governance could emerge that would fulfil these criteria better than existing processes and institutions do.

This article is cross-posted from EFF’s Deeplinks.

New work on IGF outcomes to begin

As partially documented here and here, various working groups have periodically tackled the issue of how to improve the IGF by making it more useful and relevant, and in particular by ensuring that it would have the capacity to address one of the forgotten paragraphs of its mandate from paragraph 72(g) of the Tunis Agenda; to “Identify emerging issues, bring them to the attention of the relevant bodies and the general public, and, where appropriate, make recommendations.”

However recommendations for improvement of the outcome orientation of the IGF have been held back by the need to reach a consensus with stakeholders with a vested interest in keeping the IGF in its box, resulting in milquetoast recommendations at best (such as publishing “Chairman’s Summaries” of meetings). Yet another Working Group on IGF Improvements was established this year, but it seems to be limiting itself to cataloging and assessing progress against these already-vetted proposals, as seen here.

The kind of reforms that I’ve always been more interested in are more ambitious reforms relating to the development of policy recommendations within the IGF, either using face-to-face deliberative democratic methods, and/or innovative online tools. In the few cases where deeper critiques of the IGF have recognized the need for such more ambitious reforms, such as in a 2014 report by Edward Roche, the IGF MAG and/or Secretariat have acted as gatekeeper to bury these and prevent them from being addressed.

My most recent effort to circumvent these blocks by introducing more ambitious procedural innovations to the IGF from the bottom up, viz. through the Dynamic Coalitions, or from the side, viz. through Stanford University’s independent side project on Deliberative Polling, have met with similar difficulty due to obstruction and delay from those opposed to the idea of the IGF producing recommendations.

But another attempt to crack this nut is about to begin, through another IGF working groups that the MAG established for this year, the Multi-year Strategic Work Programme group chaired by MAG chair and former ISOC President/CEO Lynn St Amour. Today, the group accepted the following mandate for a new drafting group that would produce a short option paper for consideration of the full working group, outlining a range of possible approaches towards the fulfilment of the IGF’s mandate in paragraph 72(g). Without prejudging that any changes from current practice are necessary, the option paper would address:

  • What factors would make it more or less appropriate for the IGF to produce an output addressing a particular policy issue in conformance with its mandate in section 72(g)?
    • For example—strong and broad consensus around the issue, no other multi-stakeholder body directly addressing the issue
  • Are existing mechanisms for the developments of outputs within the IGF (eg. Dynamic Coalitions or Best Practice Fora) appropriate for the generation of draft text on such an issue from the IGF?
    • If not, what new mechanisms (such as expert working groups, or participatory political processes such as the “citizens jury”, etc.) could be used to develop such draft text?
  • What form or forms could these outputs of the IGF take that would be consistent with its status as a forum for multi-stakeholder policy dialogue through a non-binding process?
    • For example, are Internet technical community processes of offering voluntarily-adopted “Requests for Comment” applicable?
  • Once draft text has been produced, what kinds of further process could allow for the IGF as a plenary body to meaningfully consider and provide feedback on it, and what institutional reforms to the IGF would be necessary to support that process?
  • What should be the threshold standard for the publication of a text as such an output of the IGF?
    • For example, would it be necessary to achieve a “rough consensus” standard within the community of registered on-site and online IGF participants?

This has the potential to be quite a breakthrough, given that so many previous endeavours to suggest improvements the IGF have deliberately avoided addressing paragraph 72(g) head-on. As a member of this new drafting group and of the full working group, I will do my best to help draft a persuasive option paper that illustrates that the development of non-binding recommendations need not be the death knell for the IGF as many fear, but could on the contrary be the salvation of an institution that some say is on its last legs.

How IGF 2016 failed, and how IGF 2017 could do better


More work needs to be done in ensuring that workshop rooms are assigned appropriately and with plenty of notice of late changes. Two workshops that I was involved with were placed in a room that was far too small, which drove would-be participants away.

One of these workshops had been listed in the printed schedule in a larger room, and participants who had not noticed the change in the online schedule had no forewarning of the change until the workshop was about to begin. Apparently the event that had taken over the larger room had insisted on being given a larger space, notwithstanding that it ultimately had fewer participants. Worse, IGF volunteers present in the originally-assigned room were apparently unaware of the change, resulting in much confusion by participants and organizers.

Main sessions

I was also involved in preparations for two of this year’s main sessions. It is understandable that the MAG takes a more hand-on role in the development of main sessions, however in the case of the session on Trade and the Internet, this was taken to excess. The MAG went to the extent of micro-managing how many and which speakers there should be, how the session should be titled, what the agenda should look like, and so on. The actual subject matter experts attempting to organize the session did not find this level of intervention helpful at all.

There was also a lack of clarity about what details the MAG could require from the main session organizing team in order to approve the session. The original main session application form only seemed to require a description of the theme of the session, how it fulfilled a set of criteria for main sessions, and some details of how it would be organized. Yet even after supplying these details, feedback from the MAG suggested that we were also expected to have finalised our speaker and agenda before the main session could be approved. This was confusing and inconsistent with the treatment of other main sessions.

The MAG should take less active role in programming main sessions. The main role of the MAG should simply be to approve the theme of the session, and then to take a step back to allow space for the organizers to do their work without interference. Although there should be one or more liaisons from the MAG on each main session organizing committee, it should not be expected that these liaisons should necessarily lead that committee, and it should not be necessary for them to obtain approval from the MAG for every detail of the session. In particular the issue of panelist selection is too easily politicized within the MAG, with demands that certain favoured speakers or groups be selected even if they do not have subject matter expertise.


Looking at the bigger picture, the IGF needs to continue to address its inability to fulfil the mandate in paragraph 72(g) of the Tunis Agenda for the Information Society, which requires it to “Identify emerging issues, bring them to the attention of the relevant bodies and the general public, and, where appropriate, make recommendations”. Even more than a decade after its formation, the IGF has still failed to develop the capacity to fulfil this crucial paragraph of its mandate, despite much discussion about how it could do so, and a few tentative steps taken. But comparing these steps to the achievements of the NETmundial on a much shorter lead-time reveals how the IGF has fallen short.

The building blocks for addressing this deficiency at the IGF are already in place. For example, the team from Stanford University that has organized events on Deliberative Polling at the IGF have demonstrated how the use of deliberative democratic practices can yield measurably higher quality outcomes. In parallel, the Dynamic Coalitions have been experimenting with online and offline feedback forms to gauge the support of the broader IGF community for the Dynamic Coalition outcomes. These supplement the similar document review platform that exists for the MAG-led Best Practice Forums.

Putting these building blocks together, the IGF could adopt a process whereby Best Practice Forums and Dynamic Coalitions alike could host the development of draft outputs for the IGF that would be developed on an open, multi-stakeholder basis, much as they do now. Each year one or more of those draft outputs (perhaps selected to complement the meeting’s theme) could be taken to the “next level” by subjecting it to a well-resourced, officially-supported and professionally facilitated process of democratic deliberation that would take place during a main session. In order to make the deliberation as inclusive as possible, this main session should not be scheduled at the same time as any workshops, and should include remote and asynchronous participation options.

This could result in the identification of points of consensus, documented under supervision of the MAG, that the chair of the meeting could recognise as a non-binding recommendation of the IGF, thereby fulfilling the neglected paragraph 72(g) of the IGF’s mandate.

The Internet Governance Forum wakes up to trade

The Internet Governance Forum (IGF) is a multi-stakeholder community that discusses a broad range of Internet issues, and seeks to identify possible shared solutions to current challenges. This year was the first year in which the spotlight fell on the use of trade agreements to make rules for the Internet behind closed doors, and a broad consensus emerged that this needs to change.

In an unprecedented focus on this issue, there were three separate workshops held on the topic—an EFF-organized workshop on the disconnect between trade agreements and the Internet’s multi-stakeholder governance model, two more specific workshops on the Trans-Pacific Partnership (TPP) and on the Trade in Services Agreement (TISA), and finally a high-profile plenary session that was translated into the six United Nations languages and included on its panel two former trade negotiators, a Member of the European Parliament, and two private sector representatives, as well as speakers from EFF and Public Citizen. Private sector panelist David Snead from the Internet Infrastructure Coalition said:

I think if you look at the recent history of trade negotiations, we have this long string of failed trade agreements, and trade agreements that have been really vehemently opposed by a number of people, the last of which is TPP. What does that indicate to me? It indicates to me that as someone who believes very deeply in the potential for free trade and the fact that free trade is good, that the system isn’t working. If we can’t get people behind the trade agreements, if we have people in the streets opposing the trade agreements, we need to find a better way to address their concerns, and for me the primary issue is one of secrecy. I think we’ve gone way overboard in classifying trade agreements and trade agreement texts, and there need to be methods for opening those up.

The attention now being given to trade at this important global forum comes not a moment too soon, as the intense push to ram Internet issues into international law through the TPP and TISA that we saw this year won’t be dampened for long by the failure of the TPP. The narrative is that whether it takes effect or not, the closed TPP negotiations themselves have set a new standard for digital policies that countries in the Asia-Pacific region should uphold in order to participate in 21st century trade.

Thus today the sad news has come of Japan’s pointless ratification of the defunct TPP, and the passage of associated legislation. Although we have not seen this legislation, we understand that it includes the extension of Japan’s copyright term from 50 to 70 years after the death of the author, which makes today a very sad day for Japan’s public domain. There remains a risk that other TPP countries such as Singapore—and even countries that weren’t part of the original deal, such as Taiwan—will soon also bring their domestic legislation into conformity with the requirements of this dead agreement.

On the other side of the world, three dozen university professors from around the world this week released the Namur Declaration [PDF], which echos the calls made at the IGF to improve the transparency and inclusiveness of trade negotiations, with a demand that the “interim results of the negotiations should be made public and accessible in  due course, so that civil society is ensured full knowledge and a parliamentary debate can take place before closing the negotiations.” This reinforces similar demands made in the Brussels Declaration on Trade and the Internet [PDF], that EFF and its partners released in February this year.

The world clearly recognizes that writing is on the wall for closed, secretive trade deals. As the principal and most powerful proponent of this outdated and undemocratic method of trade negotiation, the onus falls upon the United States Trade Representative (USTR) to listen to the public’s demands and to respond. Following up on the strong consensus for change expressed at the IGF, EFF will be meeting with the USTR early in the new year to discuss how it can begin making the necessary reforms. This blog was reposted from EFF’s Deeplinks.

Why IGF main sessions suck

This year I’ve been involved with two of the main sessions at the upcoming IGF in Guadalajara. Being behind the scenes gives you a bit of an insight into why these always seem to end up being so disappointing.

First, the IGF allocates no budget for them. None. I mean, you do of course get the translation, and some assistance from the Secretariat with basic logistics, but say for example that you want to retain a professional moderator, such as most conferences of this size have—then you’re paying for that out of your own pocket, or more often, doing it yourself. At last year’s Dynamic Coalitions main session, I was even personally buying stationery for use in the session.

Second, they have to be organized by IGF MAG members, even if they have no connection to the topic of the main session, and no knowledge or experience to qualify them for doing so. There is no obvious reason why this should be so. Sure, it makes some sense that the MAG should approve any main session topic. But why should they also be responsible for seeing it through? MAG members are not chosen for their subject matter expertise, and this explains a lot about the low quality of most main sessions.

Third, the appointment of speakers to the main session is based on political patronage, rather than merit. The power blocs within the MAG can block those that they don’t like, or hold a session’s approval hostage until their favoured candidates are appointed to speak. Regional, gender and stakeholder group balance are also prioritized over knowledge and experience. This results in panels that are large, weak, and lacking any outlying perspectives.

The way in which main sessions are organized needs to be thoroughly revamped if they are to start to attract more interest at IGF meetings, and a good start would be to divest the MAG of its responsibility for organizing them, and instead to outsource this role to independent experts, with appropriate resourcing to allow the sessions to be staged to a professional standard.

Is the IGF retreating from accountability?

Just because there haven’t been any updates posted here for a while doesn’t mean that there haven’t been any notable developments in the preparatory processes for the next Internet Governance Forum. But lacking the time to write about them, I’m just going to quote and link to some commentary from other IGF watchers. First, Farzaneh Badii posts an excellent critique of the dysfunctional relationship between the bureaucratic, opaque and territorial UN Department of Economic and Social Affairs (UNDESA) and the notionally open and multi-stakeholder Internet Governance Forum that it administers. Noting how this tension manifests in areas such as the black-box selection process for MAG representatives, the failure to reappoint executive leadership for the IGF, and especially in the surprising decision to hold a closed-door IGF planning retreat in New York next month, she concludes:

UNDESA is trying to gain legitimacy by pretending that it is committed to the multistakeholder process, even though it is not. Through the selection of MAG and having a leash on the IGF secretariat, it will dominate the whole process in the long term, especially now that IGF has a 10 year mandate and it is free from the pressure of having to act responsibly and accountably to ensure future renewals. DESA will make allies in its confidential meetings with the strongest stakeholder groups and provide them with incentives to participate in IGF process. They can argue that the retreat’s resulting outcome document will not be final and that they will consult with the wider community, but let’s be honest: how many times have our comments been taken into serious consideration at IGF when they were merely on paper and we did not have a presence in drafting the document? We need an open and transparent process for selection of MAG, with minimal involvement from the UN.

Farzaneh is also behind a new Dynamic Coalition on Accountability of Internet Governance Venues that I have also joined, which aims to shed light on the procedural flaws of the IGF and of other Internet governance institutions, with the ultimate aim of reforming them to accord with the multi-stakeholder principles of openness, transparency and inclusivity that they espouse. UNDESA’s unexpected decision to hold a private IGF retreat at the resort town of Glen Cove, New York, likely without remote participation, also caused concern within civil society groups such as the Internet Governance Caucus (IGC) and Best Bits. Wolfgang Kleinwächter offered these comments on the IGC mailing list:

Access, Openess and Transparency are key elements of any multistakeholder process. But this case raises also the question of accountability. Who is in charge for the whole IGF? In my understanding it is the MAG which represents the various stakeholder groups. But to whom is the MAG accountable? To the governments of the UN member states? Or to the various IGF communities, loosely organized in the stakeholder groups which facilitate the nominations? Probably the planned UNDESA meeting could kick-start a process on a MAG transition away from UN stewardship to a independent and self-sustainable bottum up and community driven process where governments are involved as an important stakeholder but have to “share” decisions making with other stakeholders.

The questions being addressed at the retreat are hardly new; the same are posed every year, and the same answers that stakeholders give (such as these from 2009 and these from 2014) are routinely disregarded or overruled. Even the findings of independent reviews of the IGF, such as a 2014 evaluation by Edward Roche, have been buried and ignored. Planning retreats are not going to help advance the IGF’s mission while the IGF community feels disempowered because its recommendations are ignored and the most important decisions are made behind closed doors. Farzeneh’s criticisms of the accountability of the MAG appointment process are essentially the same criticisms I made in 2008. Almost nothing has changed and we are still having the same arguments years later. What is needed is for UNDESA to cease treating the IGF’s important global function as a feather in its own cap, and to release its stranglehold over the IGF’s management to the multi-stakeholder Internet community (again, nothing new; I made this argument in 2009). The ICANN transition, freeing that organisation from its ties to the US government,  has blazed exactly the same path that the IGF now needs to follow to free itself from UN bureaucracy.

Excerpts from “Criteria of meaningful stakeholder inclusion in internet governance”

My paper Criteria of meaningful stakeholder inclusion in internet governance has just been published at the Internet Policy Review. Here are some excerpts:

This paper proposes a set of four criteria of meaningful stakeholder inclusion in global internet governance processes, that can simplify the process of examining and critiquing processes that purport to allow for public or multi-stakeholder involvement in public policy development. Because the criteria that will be presented here are largely independent, they allow for the multi-dimensional assessment of such processes. In comparison, the application of a binary designation “multi-stakeholder” conveys too crude a meaning, which has allowed its appropriation by a broad range of processes (Raymond and DeNardis, 2015, p. 575), some of which are not particularly open or participatory. This has even led certain people to assume that multi-stakeholder processes are necessarily undemocratic or captured, merely because some are. …

More specifically, the criteria of meaningful stakeholder inclusion presented here are designed to capture the extent to which the processes in question are effectively designed to incorporate the viewpoints of all affected stakeholders into the development of those policies in a balanced way, this being the essential feature from which this subset of multi-stakeholder processes can claim democratic legitimacy. Because it is very difficult to get this right, skepticism about multi-stakeholder processes in general is justified. But at the same time, there is little alternative to exploring such processes, given that despite pockets of internet policy that can be effectively governed locally, more often the border-crossing impacts of (or impacts upon) such regulation caused by the internet’s global architecture impel stakeholders to coordinate in order to govern those issues effectively and legitimately. …

As a first step towards achieving meaningful stakeholder inclusion, it is suggested to apply the following criterion as to whether the right stakeholders are participating in a multi-stakeholder internet governance process:

The body should have access to the perspectives of all those with significant interests in a policy problem or its possible solutions.

Strategies that a body can pursue to ensure that it meets this criterion include:

  • Being structurally and procedurally open to admit the participation of all stakeholders who self-identify as being significantly interested in an internet governance policy problem or by the possible solutions to that problem that are within its mandate.

  • A programme of resourcing and outreach to ensure that the perspectives of all those stakeholders who are significantly affected by that problem or those solutions are indeed included.

  • Flexibility to adapt its internal structures and processes to accommodate stakeholders within groupings that facilitate the work of the body, and can be consensually accepted by all participants as being fair and balanced. …

How, then, should the perspectives of different stakeholders be balanced, and by whom? There are two main ways in which this can be done: through policy development processes designed to roughly balance the views of stakeholders ex ante (but usually subject to a formal decision-taking process by a governing council), or by a deliberative democratic process in which the roles of stakeholders and the balancing of their views are more dynamic (though might again be subject to a formal decision taking process, which may be situated elsewhere, and/or be distributed). Some multi-stakeholder processes may also combine these two models. …

The flattening of power imbalances, which is intrinsic to deliberative democratic processes, is also absolutely critical to multi-stakeholder processes of all kinds, if they are to promote meaningful stakeholder inclusion in internet governance. Yet while there are many examples of how to do this, there is no single template that will serve all bodies best. Thus this document does not prescribe in detail how workflow and agenda work, how consensus is assessed, how committees are structured, what online tools or meeting methodologies should be used, and so on. Instead the following more general criterion is proposed, along with some examples of how it may be advanced:

There must be mechanisms to balance the power of stakeholders to facilitate them reaching a consensus on policies that are in the public interest.

The ways in which this can be done include:

  • As a first pass, agreeing upon any unique roles of the participating stakeholders in respect of the policies under consideration, based on all relevant factors including historical roles, expertise and resource control.

  • Thresholds for decision-making, such as rough consensus, that give all stakeholders an effective voice in developing policy, while minimising the possibility of minority veto or capture by the powerful.

  • Deliberative processes that flatten power differences between stakeholders and require them to defend their position in terms of their view of the public interest. …

Mechanisms of accountability must exist between the body and its stakeholders to demonstrate the legitimacy of their authority and participation respectively.

The factors involved in determining whether this is so include:

  • Where the body exercises any authority over the stakeholders, its legitimacy to do so (whether institutional, democratic, meritocratic, or otherwise) must be generally accepted by the community of stakeholders at large.

  • The body must operate transparently and adopt mechanisms of accountability that are recognised as organisational best practices, such as independent review.

  • The process must include means by which the stakeholders can be held accountable for the legitimacy of their participation, as appropriate to the process and their roles in it.

The fourth and final question bears upon how “meaningful” is the stakeholder inclusion in an internet governance process, where meaningfulness is a function of how closely the stakeholder’s participation is linked to empowered spaces in which authoritative mutual decisions are made, as opposed to public spaces that are limited to discussion (Haristya, forthcoming). The body might not be an empowered space in itself, but might be effectively (and usually formally) linked to other empowered spaces, which can also make participation in the former meaningful to some degree; amongst these processes, some may lay claim to being multi-stakeholder, while others might not. However a body which is neither empowered in its own right, nor effectively linked to empowered spaces, is not accurately described as a multi-stakeholder process, and certainly not as one that provides meaningful stakeholder inclusion in internet governance. …

For some, multi-stakeholder processes can and should be directly empowered to make or to implement global internet governance policies. But for others, there are concerns about multi-stakeholder processes that directly effect changes in global governance, particularly outside of the technical and administrative realm.

These concerns are heard from both the political left and the right. From the left, they have manifested in a rejection by some of multi-stakeholder processes in general, to the extent that these lack the intermediation of more traditionally representative democratic institutions such as national governments, or intergovernmental bodies such as the United Nations (Gurstein, 2014). This in turn stems from a distrust of providing corporations with a pervasive role at (and behind) the negotiating table, as this is seen as effectively corporate self-regulation under another name, and therefore a diluted pacifier to much needed action (by governments).

The right on the other hand has no great love of regulation, and so while expressing support for the multi-stakeholder model, has been wary of accepting it as a method of policy development. For example, some private sector stakeholders have been amongst those most resistant to the IGF developing the capacity to produce even non-binding recommendations, since this would complicate the existing structures of power and influence by which corporations and governments craft policy in less open fora, or act in default of policy (Malcolm, 2008, p. 425).

This paper seeks to address these concerns by breaking the essential features of effectively inclusive processes into several criteria, and in particular by separating out this last criterion, which isolates the core concern of these critics. The extent of the disagreement can be further narrowed by breaking the process of internet governance into several stages, such as framing and agenda setting, drafting, validation of outputs, implementation and dispute resolution (de la Chapelle, 2011). Most of the concerns about overreach of multi-stakeholder processes could be resolved by limiting the empowerment of those processes to the stages of framing and drafting. And indeed, those are the stages to which almost all multi-stakeholder processes outside of the technical and administrative are already limited. …

For each stage involved in governance, the body should either be directly empowered to execute it, or linked to external institutions that have the authority to do so, as appropriate.

This requires, for example, the following:

  • The body should develop a shared understanding of the extent of its own legitimate authority (that may vary by issue, stage of governance, implementation mechanism, and over time).

  • At every point where the body lacks either the capacity or the authority to act, formal or informal two-way liaison mechanisms linking its outputs to external empowered institutions should exist.

  • To facilitate this, the outputs of the body should be collected, synthesised, recorded and delivered in clear, actionable forms.

No claim is made that meaningful stakeholder inclusion in internet governance is easy to achieve, or that if achieved, it will easily resolve all internet policy problems. In particular, distributional effects of existing power structures are all-pervasive and these cannot be ignored. Inclusive stakeholder participation will not fully negate these imbalances. However, to the extent that multi-stakeholder processes score highly against the criteria presented here, they are less likely to have negative distributional effects than existing, less-inclusive governance institutions and processes that afford greater control over the global internet to overreaching national sovereigns and near-stateless global monopolists alike. …


Read more at Internet Policy Review.

Transcript of my controversial ICANN intervention about Idea Rating Sheets

As a follow-up from the preceding post, here is what I actually said about outputs at the IGF that caused the private sector such angst. This was delivered ex tempore, so excuse the informal grammar in parts.

Markus Kummer: Ten years ago would have been unthinkable to have a discuss on net neutrality. People would have feared, there would be blood on the floor. But in Istanbul we had a reasoned discussion on net neutrality, and as Jeremy said, this is a delicate issue we are not ready to conclude, but at least the IGF allows this discussion in a sense of neutral respect. And I’ll close with that. Maybe Jeremy wants to follow up on it.

Jeremy Malcolm: Sure. So I can say a little bit about the methodology that Markus alluded to. But maybe before I go into that just a bit more background into why we’re moving in this direction for the IGF. And when we’re here at ICANN, particularly for people who aren’t following the IGF as closely, it might seem strange that there is such a big debate about whether the IGF should produce some kind of recommendations or outcomes because we do that at ICANN all the time. And so you might wonder why is the IGF seen as just being a talk shop or a conference that can’t produce outcomes. And it’s a good question because it wasn’t always intended to be that way. If we look at the IGF’s mandate in the Tunis Agenda it does actually provide for the IGF to be able to make recommendations. So it could in a way have become the ICANN for issues other than names and numbers, if it had been structured in that way. With the difference that its recommendations would be non-binding, of course, because the Tunis Agenda does say that and also it says there should be no duplication of existing mechanisms.

But having said that, there are really few, in any, existing mechanisms for Internet policy issues to be dealt with in a multistakeholder way. So there is a lot of scope potentially for the IGF to act as a body to produce these non-binding policy recommendations. Unlike at ICANN, however, there’s been a lot of historical reservation to that, from certain stakeholders, such as some developed country governments and some of the private sector stakeholders. And when the IGF was originally being formed, I guess there was perhaps one might argue some undue influence by certain stakeholders who didn’t want it to develop in that way. So baked into the IGF’s original DNA we see a conference-style format which didn’t have the capacity to develop recommendations through structures that were designed for that purpose. Unlike ICANN where those structures do exist.

So now we have the opportunity to try and revise the way that the IGF does things, but it has to be in an incremental way and hence these — these slow reforms that we’re now seeing. And I do think it is important that we do allow the IGF to develop these capacities, because otherwise, as I think it was Marilia alluded to or someone alluded to the fact that Internet issues are otherwise going into places that we don’t want to see them like multilateral trade agreements which are very closed to civil society are being used to decide issues like IP, free flow of information that is personal data protection, and even ccTLD management which has popped up in the Trans-Pacific Partnership Agreement. So we don’t really want to see closed fora like trade agreements or even necessarily the ITU deciding Internet governance issues and it would be better if we did have a way for the IGF to produce some non-binding policy recommendations.

So the way we’re doing that is in a very lightweight, non- threatening way. And the methodology that we’re looking at for this year for the dynamic coalitions at least is the use of something called idea rating sheets. So the dynamic coalitions have all produced input documents of their own using whatever methodology they had developed internally. But those documents are really just the product of the dynamic coalitions themselves. They’re not — they don’t have any greater validity than that. So what we’re trying to do is to publish those, to explain them to the IGF community, to reduce them into a set of ideas or propositions that the IGF community can express agreement or disagreement on. And then to have a session which is actually split into two where we can invite the IGF community to — to rate or to validate the ideas that it agrees with and to show the extent to which it may disagree with the outputs as well. And so we’re going to have the break between the session on the second to last day and the session on the last day for people to complete these idea rating sheets which will be placed around the room and also made available online. And then on the second day we’ll come back and review what that feedback has been. And how we take the feedback forward is really a matter for the dynamic coalitions and the chairs of the session. If there seems to be an overwhelming consensus in favor of something that a dynamic coalition has proposed then there is the option that the chair of the session could say hey, I think we have a rough consensus on this. But for more contentious issues — and net neutrality is probably one of those — we likely won’t see such a strong consensus that we can say there’s a validation of the output by the IGF as a whole. But what we may see is that the IGF has given enough feedback that the dynamic coalition can then go away and over the next year work to revise its document and to undergo further discussions and then maybe come back later once more of a consensus has developed. And in that way we can gradually see the accretion of some outputs from the IGF without falling into the trap of having something like an intergovernmental negotiation process which as many people have long feared would be dangerous — a dangerous road to head down.

So on the other hand, if these experiments do work, I think we can then become bolder over time, and then not be so afraid of the IGF producing outputs. And so that’s my hope for the future, that we will be able to see an IGF that eventually does produce some useful actionable policy recommendations for other institutions to take forward. Thank you.

Cheryl Miller [Verizon]: So I wanted to just clarify a few things. I don’t think it would be accurate to say the private sector doesn’t support outcomes. I think for a long time we’ve not been in favor of turning the IGF into more of a negotiated body, and I think the gentleman’s points before really are testament to that, because a lot of the value and the benefit that we do receive from the IGF and from participating in it is breaking down the silos and having some of the discussions on net neutrality and other issues where we can’t discuss them in other ways and in other forums in that way. … 

And then I guess my question to the panel would be: We’ve had a lot of discussion within the MAG about MAG self-assessment and IGF self-assessment, and so you all have been involved in this for many more years than some of us new members such as myself.

What are specific things that you think we as MAG members can do to make some of the changes that you think are really important to support the IGF and make it a stronger body moving forward?

Jeremy Malcolm: There was one question that came in this last round of questions about how the MAG can help the IGF to evolve and I think the MAG has got a problem in terms of its own working methods, in that it really relies on a full consensus to be able to make any changes to the IGF and that’s rather stifling. I think the MAG needs to self-assess how it can move beyond some of those roadblocks that may be raised by just one or two members which can stop the IGF from moving forward, being more open to outside ideas as well.

For this year, one of the independently organized sessions is deliberative poll, which is another idea of how the IGF in the future might be able to deliver some outputs. So ideas like that I think the MAG should consider and try and work through those internal roadblocks that stop it from actually making evolutionary changes to the way the IGF works. Thanks.

Idea Rating Sheets for validation of IGF dynamic coalition outputs

According to an informed source, the IGF’s private sector stakeholders are raising a (quote) sh*tstorm about the presentation I gave at ICANN 54 about the process that the dynamic coalitions have developed for the validation of their outputs by the larger IGF community.

The concept for the endorsement of dynamic coalition outcomes by the main session has a long history. But it was only this year that a MAG informal working group on intersessional activities, in turn responding to a recommendation of the more formal CSTD Working Group on Improvements to the IGF, finally recommended that there should be an IGF main session at which the dynamic coalitions could “present their work and ask for validation from the broader IGF community”.

This recommendation was recorded in several sets of MAG minutes without adverse comment by the usual risk-averse private sector stakeholders (for clarity: this comprises the majority, but not all, of the long-time private sector voice on the MAG; Google, for example, is an exception), and so the dynamic coalitions proceeded to plan for such a session.

In the absence of any other suggestions for how they might do this, I came forward to propose that they should adopt the use of Idea Rating Sheets. Although we are tweaking the suggested methodology slightly (because the dynamic coalitions have a separate process for actually generating ideas; we only need one for rating them), this simple and low-cost methodology fits the bill quite well.

It allows the dynamic coalitions to explain their outputs to the meeting and then to present them for comment in a series of points. Members of the community, both online and offline, can record the extent to which they agree or disagree with those points, and optionally why, resulting in useful feedback. In the case that a given document reaches a certain high threshold of consensus within the participating IGF community, the meeting chair could declare that it has been “validated”, thereby imbuing it with a more authoritative (though still advisory) status.

It was this that has enraged the private sector. The first indication of this was when co-coordinator of the session, Markus Kummer, in his usual diplomatic fashion, declared that due to the “sensitivities” of certain members of the MAG, we would no longer be using the word “validation”. This got the goat of a number of dynamic coalition participants who had never agreed to stop using that word.

His suggested compromise, such as it was, is that individual dynamic coalitions could choose their own terminology to use about whatever it was that the IGF main session was doing to their outputs. Nonetheless he has made clear that he won’t be using the word “validation” in the main session. (I, on the other hand, most certainly will.)

Then came my presentation at ICANN 54, which essentially outlined the above. When I came to the point about the private sector being averse to the IGF producing tangible outcomes, the Verizon representative who was there present rose and declared that oh no, I had it all wrong! They are actually all in favour of IGF outcomes!

Yet it was that same individual who communicated the substance of my remarks to her private colleagues, thereby precipitating the aforementioned sh*tstorm. It’s exactly the same over-the-top reaction that these control freaks (my source’s words) pull in response to any measure aimed at empowering the IGF as a policy forum, from 2005 (when they opposed the IGF’s very formation) until today.

I also observed during the ICANN session (no transcript is yet available unfortunately, and my remarks were ex tempore), the fact that the MAG self-imposes a requirement of essentially a full consensus before any changes to the IGF’s format can be made or any outside ideas accepted, is probably the greatest weakness of the institution as a whole.

Consequently there will always be a few self-interested private sector participants (“bad actors”, to use the terminology of another IGF working group) who will misuse their position on the MAG to block needed change. But multi-stakeholder processes don’t (or shouldn’t) work that way. The IGF MAG, its Chair Jānis Kārkliņš, and the chairs of its working groups such as Markus Kummer, simply need to have the guts to tell these actors: Thanks for your feedback, but the IGF has a mandate to make recommendations, the CSTD has affirmed that these need to take the form of more tangible outputs, and a MAG working group has worked with the dynamic coalitions in an open process to define how those outputs will be produced.

Or, more concisely:

Sorry private sector, but you are not the boss of the IGF.