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

Workshops

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.

Recommendations

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.

Debunking eight myths about multi-stakeholderism

From being the darling of civil society during WSIS (and soon after being repurposed by the technical community as their own guiding principle), multi-stakeholderism has entered a rough patch during the last 18 months. The phrase, and—worse—the underlying concept have quite swiftly begun to acquire a distinctly negative connotation in the public eye (at least, among those who have heard of multi-stakeholderism at all).  Amongst the civil society voices who are now treating multi-stakeholderism as a failed cause or worse, here are a few recent examples from commentators across a range of political views:

But these are not critiques of multi-stakeholder governance in general, or to the extent that some of them are, they are misplaced. Here I attempt to briefly debunk some of the fallacies that underlie blanket critiques of multi-stakeholder models of Internet governance:

  • That multi-stakeholderism aims to replace governments. Multi-stakeholder processes are for producing soft law principles, rather than hard law regulations. Admittedly there is more of a continuum between hard and soft rather than a clear dividing line, but it is clear enough that while multi-stakeholder processes may provide recommendations to the national and international institutions that create binding obligations, they won’t be replacing those institutions any time soon. Ultimately we can question whether nation states (and groupings of these) are still the right default agents for making the hard rules that govern our world, but the future in which they fade away in favour of multi-stakeholder governing bodies remains a long way off.
  • That multi-stakeholderism is incompatible with democracy. The “harder” that the outcomes of multi-stakeholder processes are (for example, some of ICANN’s policies have effects that would be difficult to distinguish from international legal rules), the more important it is to ensure that its structures and processes are legitimate. In this context, legitimacy—which, yes, means democratic legitimacy—doesn’t just come from representative democratic processes. There are other ways of reflecting the will of those who are governed than voting, which, anyway, is impossible to realise at the global level (as ICANN discovered with its 2000 At-Large election experiment). The method that ICANN has plumbed for is to create a structure aimed at balancing the inputs of all affected stakeholder groups, including those that cross national borders. Other methods, such as the deliberative poll that is (hopefully) to be held ahead of the 2015 IGF, utilise techniques of deliberative democracy with the aim of produce balanced and rational outcomes. Such methods, flawed as they may be, are no less democratic in principle than the equally or more flawed representative democracies that we live under—nor than international institutions such as the United Nations, which indeed suffer from very severe democratic deficits. Particular multi-stakeholder processes can and should be criticised for not being democratic enough, but it is false to claim that they are undemocratic by definition.
  • That multi-stakeholderism gives too much power to corporations. Do multi-stakeholder processes allow corporations to participate? In general, yes. But let’s compare apples with apples, here. Corporations already have too much power in global governance. Do multi-stakeholder processes give them any more power? No—or if they do, they’re doing it wrong. On the contrary, multi-stakeholderism is meant to be about balancing the input of all affected stakeholder groups, crucially including civil society, which is currently sidelined in the governance processes that corporations dominate. Thus although multi-stakeholderism does allow for the perspectives of corporations to be included in decision making, this remains relatively better for civil society, because our perspectives are also heard at the same level, which is an improvement over the status quo. By analogy, consider the reason the why free and open source software licences outlaw discrimination by field of endeavour (ie. prohibition of commercial use). Although FOSS licences are good for corporations, that is because they are good for everybody (and in fact better for those who are locked out of proprietary software). The same is true of multi-stakeholderism.
  • That multi-stakeholderism is a neoliberal construct. Again, if multi-stakeholderism is really a better form of governance for the borderless world we live in, then, like democracy itself, it ought to be better for libertarians, conservatives, liberals and progressives alike (to use the US terminology). Of course, it won’t ever satisfy radicals who are really calling for the complete overthrow of existing power structures. If you are not looking for a mechanism of global governance, but for a stick to beat corporations or governments with, then look elsewhere. That’s not governance, that’s advocacy (or, in the hands of the powerful, an instrument of class warfare). But whilst multi-stakeholderism isn’t going to completely upend existing power structures, neither will democracy. What you’re probably really looking for instead is a system of government that allows workers to seize control of the means of production.  I believe there’s a name for that.
  • That multi-stakeholderism requires corporations to have an equal role to governments. This has been debunked before, but it bears repeating that this argument is no longer tenable post-NETmundial, where it was established that “The respective roles and responsibilities of stakeholders should be interpreted in a flexible manner with reference to the issue under discussion”. As explained in my previous post  that means that depending on various factors it will be most legitimate and effective in some cases for governments to take the lead; in other cases, the technical community; in others still civil society; and in some cases industry.
  • It’s turtles all the way down. This fallacy tells that in order to sort out the roles and responsibilities of stakeholders in a given issue area or forum there needs to be a pre-existing (also presumably multi-stakeholder) process to determine these, and then another one to determine that one’s composition, and so on. Actually that problem mostly solves itself. Since multi-stakeholder processes are voluntary, if affected stakeholders are not able to negotiate for the roles and responsibilities that are appropriate to them, they can always opt out. Their refusal to participate will then reduce the legitimacy of the initiative, and consequently the authority of the outputs that it produces. This isn’t just theoretical; it can and does happen; the Licences for Europe initiative is one example.
  • That any process that calls itself multi-stakeholder really is.  Part of the reason for the backlash against multi-stakeholderism is that too many of the processes that use that label don’t deserve it. Not all multi-stakeholder processes were created equal. Many criticisms that have been made of the execution of particular supposedly multi-stakeholder processes are absolutely valid. Some such Internet policy processes are still legitimate in different terms—for example, they may be instances of state-led participatory democracy—but to call them multi-stakeholder, when they do not attempt to incorporate the viewpoints of all affected stakeholders into the development of those policies in a balanced way, is misleading. One recent example of this, in which civil society’s participation was both narrow and token, is the Global Conference on Cyber-Security  Processes that do better?  Regrettably these are harder to come by as yet. ICANN is flawed and largely captured and driven by special interests, and the IGF has squandered its opportunity to actually engage in governance rather than just discussing governance. However, both institutions continue to evolve, and we should not expect the multi-stakeholder model to be perfected within just a few years (how long did it take for the Westminster system to reach its present form?).  Even so, multi-stakeholder advocates are often criticised as not presenting a good example of the ideal that they propose, which brings us to the last fallacy: 
  • That there is any alternative. It really boils down to this: if not multi-stakeholderism, then what? Do we want to establish a new, global parliament to make global rules for the Internet? Or do we expect (and trust) existing intergovernmental bodies such as the ITU or the (thoroughly undemocratic) UN Security Council to do so? Do we have any faith that the rules that 196 nation states make for the Internet will interoperate in a sane way if there is no process to guide their development along compatible paths? Or that companies will develop terms of service in consultation with users from all over the world, taking into account all their local needs and circumstances? Or that technical standards are a magic wand to wave away all of the governance problems of the Internet? There is such folly in these scenarios that it makes proponents of the development of multi-stakeholder models of global Internet governance look like staid conservatives by comparison. There really is no alternative.

So if multi-stakeholderism is not the dead end that some claim it is, but rather an emergent model of governance whose name is often taken in vain, how are we to recognise (and to shape) better examples of it? What is the gold standard of multi-stakeholder processes to which we aspire? That is, indeed, something that needs to be better documented, and I hope to be able to work with others this year to produce an accessible “quality seal” of multi-stakeholder processes that we can use to help chart the path forward.

UNESCO resists JNC’s attempt to turn “democracy” against ordinary Internet users

Today in Paris UNESCO (the United Nations Educational Scientific and Cultural Organization) finalised the outcome document from its conference, “CONNECTing the Dots: Options for Future Action”. The document is wide-ranging, and although it doesn’t push the envelope as far as civil society would like on issues such as privacy and intermediary liability, it nonetheless contains some welcome and hard-fought provisions on freedom of expression (for example, recognising social media producers as worthy of similar protections as journalists), on access to information and knowledge (referencing the importance of open access, open data and FOSS), and affirming the relevance of work on network neutrality, amongst other areas. It also manages to avoid the few negative provisions that marred the NETmundial statement, and as such was welcomed by major civil society groups on the ground in Paris as a worthy outcome of one of the most consultative, multi-stakeholder processes that one could expect from a United Nations body. Since it is a non-binding document it was not put to the vote, but was accepted as a consensus outcome by acclaim, as signaled by a round of applause.

All except by one civil society splinter group, the Just Net Coalition (JNC), whose representative, former ITU (International Telecommunciations Union) officer Richard Hill, interrupted the closing ceremony to voice a formal objection to the document, because it did not reflect two of the changes that JNC members had demanded during the open drafting sessions. One of these was a reference to “social and economic rights” that was apparently proposed at one point by Anita Gurumurthy, and the other was Hill’s repeated insistence throughout the conference that all references to “multi-stakeholder” throughout the document include the qualifier “democratic” (and in the end there was only one such reference, in paragraph 1.5 which makes the purely factual observation that the “open Internet is… characterized by Multistakeholder participation”).

In typical bombastic, sanctimonious fashion, Just Net representatives have been expressing how shocked (shocked!) they are that I was amongst those who objected to their insertion of this qualifier, claiming that it reveals that I am against democracy (and probably that I torture kittens, etc). After all, who could possibly have any legitimate reason to object to the word “democratic”, which Hill attempted to wave away as merely an “editorial” change? In fact, as a seasoned veteran of intergovernmental negotiations, Hill knows very well how by proposing a seemingly innocuous amendment—a comma here, a “where appropriate” there—one can make deceptively profound changes to the meaning of official documents, that can have reverberations decades later. (Consider the unforeseen implications that the innocuous phrase “enhanced cooperation” has had since WSIS, for example.)

What, then is “democratic multi-stakeholderism”? It’s not the multi-stakeholderism that characterises the open Internet, that’s for sure. Rather, it’s the limited type of government-led rulemaking, in which the other stakeholder groups offer merely a subsidiary advisory role, that I revealed as the agenda of the Just Net Coalition in a previous post. It sets up a false binary between democratic multi-stakeholderism on the one hand, and “equal-roles” multi-stakeholderism on the other; the straw-man position that they ascribe to me and others that supposely holds all the stakeholders to be equal in multi-stakeholder processes. While some, probably, do continue to hold that position, the preferable and more widely-held view post-NETmundial, and the middle ground that the JNC binary obscures, is that the roles and responsibilities of stakeholders will vary depending on the issue in question, the governance mechanism being applied, and the forum in which the stakeholders come together.

Thus in some cases—a treaty on the use of cyber-weaponry in war, for example—it might be appropriate for governments to take a leading role, while consulting with the other stakeholder groups, in much the same fashion that JNC supports. But in other cases—the development of new technical standards to protect the privacy of Internet users, perhaps—it would be more appropriate for the Internet technical community to have the principal role. In still others—developing model terms of service for Internet intermediaries, for example—civil society and the private sector might appropriately exercise leadership, though naturally within a legal framework that governments have established. These cases, in which multi-stakeholder working appropriately excludes a dominant role for government, would be precluded by the replacement of the flexible term “multi-stakeholderism” for the narrower phrase “democratic multi-stakeholderism”, which would only encompass the first of the three examples given above.

One will occasionally hear a JNC representative draw a distinction between processes that lead to public policy decisions embodied in laws and treaties, over which governments are to exercise sole authority, and other governance processes such as the development of standards, guidelines and recommendations, in which they may admit the participation of other stakeholders on a more equal footing. But their admission of this possibility is belied by their use of the “democratic multi-stakeholder” phraseology, which doesn’t admit of any such nuance, and could easily be used by repressive states or others to constrict the legitimacy of such soft normative processes in the future. Indeed, some might argue it already has—given that in the first post-NETmundial process in which they introduced their “democratic multi-stakeholder” language, the WSIS+10 review, a high-level meeting to be held this December has been ruled as intergovernmental only, in a regression from multi-stakeholder norms that other fora such as the IGF and NETmundial had established.

Moreover, JNC’s position that there is such a thing as “public policy decisions” that should be reserved to governments sets up a further false binary, given that in the post-Westphalian era, government edicts such as laws and treaties no longer necessarily have effects that have any more practical force and impact than non-governmental decisions, such as those that ICANN makes over domain names and IP addresses, or those that private-sector arbitrators make in cross-border trade disputes. It is imperative that we do not close these non-governmental processes to being improved through multi-stakeholder participation of various forms. This must be broad enough to include forms that do not place governments in a position of authority over other affected stakeholders, many of whom, such as trans-national networks of citizens, governments alone do not adequately represent.

It is therefore time to stop this insidious form of words from spreading any further, and that is why I was proud to be amongst those who stood up to oppose the constriction of UNESCO’s support for multi-stakeholder Internet governance to only limited forms of “democratic multi-stakeholderism” that are led by states.