1net and the myth of technological neutrality

The coalition of non-governmental stakeholders that was initiated by the technical community at the Bali IGF meeting, and that I described in this post, subsequently gained a name and a website: 1net.

Despite a play by 1net’s proponents to gain a special role in organisation of the Brazil meeting, civil society representatives who had self-organised their own liaisons with the Brazil process made it clear that they weren’t comfortable with that. Meanwhile the multi-stakeholder Brazilian Internet steering committee CGI.br assumed much of the role that 1net’s proponents had seen for it, and a broad-based joint Civil Society Internet Governance Coordinating Group came together to nominate civil society’s representatives to the Brazil meeting. So since then 1net has been dithing about what else, if anything, it can usefully do.

As such the 1net dialogue is currently just another mailing list, rather than the “movement” that its website claims, but is proving to be – well, useful would be too strong a word, so let’s say mildly diverting, as a forum for the exchange of views between technical community stalwarts, who normally reside in a bit of a goldfish bowl, and civil society activists and academics – of whom in fairness the same could probably be said.

Here is a post that I made to the list today, in response to the suggestion that a useful activity for 1net would be to gather evidence of the benefits of “neutral” technical administration of the Internet. I responded:

On the other hand, we should also avoid confirmation bias. Let’s examine whether or not neutral technical administration supports underlying values that we support, rather than trying to find evidence that it always does. Otherwise we will tend to entrench elements of existing Internet governance arrangements on the assumption that the Internet as we know it now is the best of all possible Internets, when it may not be.

In any given case there may be other (and less “neutral”) ways of technically administering the Internet that would actually be better at promoting the balance of interests that we can agree through democratic (including globally democratic aka. multi-stakeholder) processes, including privacy, security and freedom of expression.

In the same way that a regulated market is less “neutral” than a free market, but, in cases of market failure, serves consumers’ interests better, so too there may be merit in a level of democratic oversight or intervention into certain technical processes to ensure that broader social values are not overlooked in the administration of Internet resources and development of Internet standards and protocols.

(Before people accuse me of things that I’m not actually saying, for me this is very loose: basically, establishment of processes outside of and broader than existing technical community bodies, to provide a framework of principles, that can guide and direct technical work along socially beneficial lines, rather than assuming that social values are automatically and inherently implicit in those processes.)

Political ideology, of course, comes into this, so we are unlikely always to agree on how much intervention is beneficial, and will be tempted to make generalisations like “no government control over the Internet” or conversely “no democracy without governments, let’s form a UN council to set the rules”. My own take is more nuanced and I’ve set it out at length in posts like these (and many others):

Moreover I think the more explicit that we make the political dimension of this discussion, the better. It is amazing how (what Americans would call) progressives can morph into libertarians just because the context is the Internet. In other words, if you don’t want Internet technical processes to be regulated think hard about why you’re saying that. Do you also not want markets to be regulated? If so, fine; that’s a political view that you’re entitled to. But otherwise, you might be falling into the trap of Internet exceptionalism.

My views and short report – UN Working Group on Enhanced Cooperation

Here are my personal views and a short report as a participant in the Working Group on Enhanced Cooperation (UNWGEC) – its second meeting just happened in Geneva (6-8 of November). It just follows the latest edition of the UN Internet Governance Forum (IGF) held last October in Denpasar, Bali, Indonesia.

In the discussion of enhanced cooperation among nations for the advancement of the information society and knowledge (and with this phrase I try to synthesize my view of the subject), the IGF is always taken into account, both to highlight its (relative) relevance and to suggest the way forward for international governance of the Internet.

Several governments also insist that the 2005 Tunis Agenda (attached in PDF), a non-binding commitment among governments, should not be changed — some even hail the Agenda as a “bible” to be followed, even if it has not been followed by some of the very governments which view it as such, and even if the dynamics of rapid worldwide development of the Internet requires periodic revisions.

The Tunis Agenda contains a lengthy specification of the mandate the IGF should follow, as described in its paragraph 72:

72. We ask the UN Secretary-General, in an open and inclusive process, to convene, by the second quarter of 2006, a meeting of the new forum for multi-stakeholder policy dialogue—called the Internet Governance Forum (IGF). The mandate of the Forum is to:

  1. Discuss public policy issues related to key elements of Internet governance in order to foster the sustainability, robustness, security, stability and development of the Internet.
  2. Facilitate discourse between bodies dealing with different cross-cutting international public policies regarding the Internet and discuss issues that do not fall within the scope of any existing body.
  3. Interface with appropriate intergovernmental organizations and other institutions on matters under their purview.
  4. Facilitate the exchange of information and best practices, and in this regard make full use of the expertise of the academic, scientific and technical communities.
  5. Advise all stakeholders in proposing ways and means to accelerate the availability and affordability of the Internet in the developing world.
  6. Strengthen and enhance the engagement of stakeholders in existing and/or future Internet governance mechanisms, particularly those from developing countries.
  7. Identify emerging issues, bring them to the attention of the relevant bodies and the general public, and, where appropriate, make recommendations.
  8. Contribute to capacity building for Internet governance in developing countries, drawing fully on local sources of knowledge and expertise.
  9. Promote and assess, on an ongoing basis, the embodiment of WSIS principles in Internet governance processes.
  10. Discuss, inter alia, issues relating to critical Internet resources.
  11. Help to find solutions to the issues arising from the use and misuse of the Internet, of particular concern to everyday users.
  12. Publish its proceedings.

It is clear that this broad mandate is not being fulfilled by the IGF. First of all, these items show that the IGF should be a process-oriented forum, not merely a sequence of events.

Secondly, there are clear references to recommendations that should be generated by the IGF – for example items e, g, h, and i – which have been basically ignored by the UN.

The fact is that the IGF is leaving aside significant components of its mandate, and even governments which swear fidelity to the Tunis Agenda have not given importance to these shortcomings. Further, the MAG (which is dedicated only to organize each yearly event) is composed basically on UN-filtered sectorial representation but not the necessarily on the expertises needed to carry out this challenge.

It is therefore necessary to rethink the IGF if it is deemed to be (or might become) a central instance of enhanced cooperation. Otherwise it might be replaced in favor of other ways to advance this process.

As for WGEC, whose goal is to deliver recommendations on enhanced cooperation to the Commission on Science and Technology for Development (UN UNCSTD) in the first half of 2014, which will be brought to the UN General Assembly in September of the same year, the work so far has revealed some worrying weaknesses.

The central result of the first meeting of WGEC, in June 2013, was the production of a questionnaire that was answered by all sectors. There were 69 responses , thus distributed: 29 from governments, 23 from civil society, 11 from the “technical-academic” sector, and eight from the business sector. More than half of the responses came from developing countries.

It produced a consolidation of the results with some flaws (including the mistakenly taking responses from the Best Bits group of NGOs for the APC responses), but even so the consolidation gave a reasonable idea of the various views of the working group in relation to themes of cooperation and improved governance of the Internet. [summary is attached in PDF]

The summary and procedures in the second meeting (6-8 November) reveal the risk of retracing the path already followed for building the Tunis Agenda, as well as the efforts of the Working Group on Internet Governance (WGIG , which met November 2004 to June 2005). Effectively, significant time was consumed in preparing a list of over 300 topics possibly related to Internet governance and enhanced cooperation. Group difficulties in dealing with such a number of issues in order to try to group them into key issues was such that we constituted a specific group (“correspondence group”) to come up with a short list of topics. The perception of “déjà-vu” for the old-timers who participated in the WGIG and the WSIS process is inevitable.

One of the problems of a working group like this is that participants are defined in terms of their sectoral representations and not necessarily because of their expertise on the issues (something similar to what occurs with MAG). This creates an additional difficulty for both the consolidation of the issues and the drafting of a qualified report.

Faced with the lack of time and the uncertainties generated by this process, some sectors have presented concrete proposals, which I relate below.

A group of civil society organizations and individuals presented an interesting list of possible recommendations to be evaluated and possibly adopted in the final report WGEC (I added the numbering for easy future reference). I have reservations about the effectiveness of the role of IGF so far, but overall I agree with the approach and consider a contribution to guiding the future WGEC report. Their suggestions:

Draft recommendations bullets prepared by a group of WGEC Members and Observers

  1. Acknowledges that the Tunis Agenda, if it is to continue as a reference point for all stakeholders, should be considered as a living document which needs to be updated to reflect the roles and responsibilities of all participants;
  2. Encourages the rethinking of the stakeholder roles that were defined by governments unilaterally in the Tunis Agenda, noting that these roles were originally defined by governments in December 2003, Geneva Declaration of Principles;
  3. Affirms that the internet belongs to everyone: everyone can use it and everyone can improve it: this also applies to its governance;
  4. Acknowledges that Enhanced Cooperation is well underway as intended in Tunis Agenda paragraphs 67 through 75;
  5. Concludes that no new multilateral arrangements, are required for Enhanced Cooperation;
  6. Acknowledges that new mechanisms spring into existence organically as they are needed and that there is no need to create new mechanisms in a top down manner;
  7. Acknowledges the efforts of various existing mechanisms to understand internet governance and to make public policy in light of, and taking into account, its multi-stakeholder nature;
  8. Congratulates the IGF for its work in meeting its Tunis Agenda defined role in fostering Enhanced Cooperation;
  9. Encourages the IGF to cover all issues of Internet governance that are of concern to stakeholders and to form ongoing Issue Discussion Groups within the IGF to make recommendations on these issues to the larger IGF community;
  10. Encourages the IGF to follow the recommendations of the CSTD WG on IGF Improvements including its mandate to give advice to the functional Internet governance and management organizations;
  11. Encourages those making public policy to engage more fully in the IGF and to bring to the IGF their questions on internet related matters within their mandates;
  12. Encourages all governments to commit to the IGF, and to use the IGF process as an opportunity not just to engage with all other stakeholders, but as an opportunity to work with each other on an equal footing;
  13. Invites all Internet governance and management organizations to participate in the IGF.
  14. Reinforces the multistakeholder approach and encourages all stakeholders to engage more in and work with existing organisations and to explore ways in which stakeholder engagement can be enhanced.

In summary, the path is to focus, focus, focus on a small but essential set of topics and try to build proposals for enhanced cooperation among nations (rather than just among governments) around these themes (and this points to the requirement of pluriparticipative processes all along). Otherwise, the WGEC will end up replaying the generalities of much of the Tunis Agenda and will barely advance.

On the side of governments, suggested guidelines came from the governments of Brazil, Mexico, the UK and Sweden:

  • Members [of the UN] should explore ways to strenghten participation of all stakeholders from developing countries in existing global internet governance fora including through funding mechanisms and alternative working methods such as remote participation.
  • Members should increase efforts to empower stakeholders to particpate through capactity building, including but not limited to, training programs, awarness raising, best practice sharing.
  • Members should work with developing countries to create a fair and consistent domestic framework that stimulates competition and creates affordable access for all stakeholders.
  • The role of governments should include, but not be limited to, to empower internet users, ensure a fair and consistent legal framework that is transparent accountable and equitable and protect human rights online, to foster a robust global internet infrastructure and support mulitstakeholder processes and partnerships.

At this point, I believe the proper junction of the two proposals can help speed up the process towards the final report of the WGEC.

Stakeholders wrangle over the Brazil Summit on Internet Governance

With the recent revelations of mass United States government surveillance, existing Internet governance arrangements have become more than untenable – for many they have become an outrage. And the solutions that governments proposed at WSIS – the IGF and the unfinished process towards enhanced cooperation – have not provided the substantial changes that stakeholders, particularly from the developing world, are now demanding. The speech that President Dilma Rousseff delivered to the 68th Session of the United Nations General Assembly on 24 September set the scene for change, describing her anger at the “grave violation of human rights and civil liberties” represented by the US surveillance revelations:

It affects the international community itself and demands a response from it. Information and communications technologies cannot be the new battlefield between States. Time is ripe to create the conditions to prevent cyberspace from being used as a weapon of war, through espionage, sabotage, and attacks against systems and infrastructure of other countries. …

For this reason, Brazil will present proposals for the establishment of a civilian multilateral framework for the governance and use of the Internet and to ensure the protection of data that travels through the web.

Following Rousseff’s speech, most of the I* organisations came together to meet in Uruguay. The outcome of that meeting marked a radical break from their previous support for the continuation of US oversight over Internet governance, and their rejection of previous proposals for new models of public policy development for the Internet. The Montevideo Statement on the Future of Internet Cooperation that they issued on 7 October records that they “discussed the clear need to continually strengthen and evolve [Internet governance] mechanisms, in truly substantial ways”, and “agreed to catalyze community-wide efforts towards the evolution of global multistakeholder Internet cooperation” including “the globalization of ICANN and IANA functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing”.

But as radical a development as this was, the tumult had barely begun. On 9 October, Fadi Chehadé, the CEO of ICANN, dropped a bombshell with the announcement that, during a hastily-convened meeting that day, he had convinced President Dilma Rousseff to convene a multi-stakeholder summit on Internet governance in April 2014, which would address the issues raised in her speech and in the Montevideo Statement.

The summit would not be a UN meeting (such as the IGF, and a tenth-anniversary WSIS meeting already planned for the same month in Sharm el Sheikh). Also unlike those meetings, it would have a mandate to produce tangible outputs: a set of principles (Rouseff’s “civilian multilateral framework for the governance and use of the Internet”), a proposed new institutional framework for Internet governance that could substitute for the US oversight of ICANN, along with a decision-making mechanism for “orphan issues” (those not being dealt with in any other international forum).

The timing of this proposed summit was no less extraordinary than its mandate: for governments, planning a high-level summit in six months’ time is like planning your wedding for next week. The date chosen (which has subsequently been revised to May) falls immediately after the main WSIS+10 meeting, but before a follow-up high-level meeting that Brazil has been pushing for, that could be used to ratify the decisions taken at the Brazil summit. It would also precede the ITU Plenipotentiary in October, at which moves for governmental control of the Internet could be reasserted, if insufficient progress were made at the summit. And probably not coincidentally, it also leads into the re-election date of President Rousseff, also in October 2014.

The dust from this announcement had barely settled before all the stakeholder groups involved in Internet governance discussions were together in Bali to take stock of it, at the 8th Internet Governance Forum, which wound up yesterday. By then, accounts of the meeting from Brazil and ICANN were beginning to diverge: was it a “summit”, as Brazil termed it, or merely a “meeting” or “conference”, as contended by Chehadé? Would it propose solutions, as Brazil insisted, or would it just be for discussion, as Chehadé now described? Was the idea that the summit should be multi-stakeholder a concession that Chehadé wrought from the President, or did she have that notion all along?

Part of the reason for the divergence was that Chehadé had not discussed his remarkable proposal to President Rousseff with the other I* organisations before making it, and had caught them quite by surprise. This was evident at a series of tense and packed meetings during the week at which the proposal was further explained to stakeholders. In particular, a meeting called by the I* organisations on 23 October, that was chaired not by Chehadé but by Chris Disspain, CEO of Australia’s domain name authority AuDA, painted a very different picture to that described by Rousseff and Chehadé.

Disspain asserted that until now the multi-stakeholder Internet governance system had been maintained by the United States and a “quiet coalition of the willing”, and warned of the risk that more Internet governance issues would “fall into the hands of governments”. He announced plans to build a coalition of thought leaders to oppose such moves towards a “governmental or government-centric” model, and to spearhead a grassroots campaign to build support for this position.

Downplaying the importance of the summit, Disspain described it as “not the end game, just a stop on the road”, and asserted that “we seem to have the reins of that meeting, and we need to keep hold of those reins”. Even Chehadé, whilst clearly having a broader conception of the summit’s purpose than Disspain, similarly boasted about the technical community’s leadership of the event, saying “we can make it our meeting”, and claiming that that he had told the Brazilians that the meeting would not be about proposing solutions, as this would be taking things too fast.

This did not go down well for some in the room, particularly from civil society, who saw in the summit a potential way to address the serious human rights violations committed through mass surveillance, and to accelerate the long-delayed globalisation of oversight of ICANN and its functions. They were alarmed by the prospect of the summit being hijacked to serve the narrow interests of the Internet technical community, which had been so quick to obstruct previous proposals for reforms to Internet governance, such as through the IGF and enhanced cooperation processes.

As the IGF closed yesterday, a small group of hastily-nominated stakeholder representatives met that day to discuss the way forward. The technical community and private sector nominees expressed little enthusiasm for the summit at all, and seemed more interested in the new coalition that that the technical community had announced to oppose governmental involvement in Internet governance.

But Chehadé had released a genie that could not be returned to its bottle. The delegation from Brazil, whilst taken just as much by surprise by the rapidly-unfolding summit plans as everyone else had been, had seized the moment, along with much of the limelight at the 8th IGF. Whilst details remained sketchy – they had no clear plan for consulting with stakeholders, for example – they had promised to release a more detailed plan of the summit by 11 November, and meanwhile were also recruiting 3-4 other countries as co-hosts of the summit. At the top of their list was Germany, in the wake of revelations that the United States may have tapped Chancellor Angela Merkel’s phone. India, South Korea and Australia are also possible candidates.

In only a month since President Rousseff’s speech to the United Nations so much has changed, and yet at the same time so little. Whilst taking tentative steps forward with the Montevideo statement, the technical community has already begun to retreat from its full implications, in the fear of their role being overshadowed. If the old guard of the technical community have their way, another orchestrated WCIT-style “grassroots” campaign against Internet governance reforms may be in the offing.

But as the only clear driver for concrete reform in the ten years since WSIS, the proposed summit has also excited and energised other stakeholders, who see such change as inevitable and overdue, and who regard Brazil as a more trustworthy country than Cuba, Russia, Iran or China to lead this effort using an inclusive, multi-stakeholder process. It would be a shame to allow that opportunity to slip by, all for the sake of preserving a model of Internet governance that many now agree has become outdated and inadequate for the Internet of today.

Continue reading in “Brazil Summit heralds major Internet governance reforms” at Digital News Asia.

How the technical community fails at multi-stakeholderism

One of the standard arguments that the United States and other developed countries make in opposing changes to Internet governance is that the Internet is already well governed through a multi-stakeholder model by a network of grassroots Internet technical community organisations. These are said to include the IETF (Internet Engineering Taskforce), ICANN (the Internet Corporation for Assigned Names and Numbers), the RIRs (Regional Internet Registries) and the W3C (World Wide Web Consortium).

Yet when you look a little closer, none of these organisations actually represent grassroots Internet users, or are even multi-stakeholder by any usual definition of the term. Neither are they capable of legitimately dealing with broader public policy issues, that go beyond the development of purely technical standards development and the allocation of Internet resources. As a result, the process by which they reach such decisions is undemocratic, and some of the policy choices embodied in those decisions are unsupportable.

Unfortunately those organisations often don’t seem to realise this, and will quite happily go about making policy heedless of their own limitations. An example is the failed process by which the W3C’s tracking preference working group sought to develop a specification for a standard called “Do Not Track” or DNT. The concept behind this standard (which I’ve written about in detail elsewhere) was to specify how a website or advertiser should respond to a notification expressed by a user (typically through a browser setting) that they do not wish to be tracked online.

The W3C is not the only example of this sort of dysfunction. The IETF has (to its credit) acknowledged its own limited inclusiveness (its parent body the IAB has 11 white males on its board of 13), ICANN has recently received blistering criticism over its failure to pay attention to the community’s wishes (while drawing in millions from the new global top-level domain goldrush), and soon to be released research will unveil how decisions of the RIRs such as APNIC are similarly driven by shallow discussion from a narrow segment of stakeholders (even though this takes place on notionally open mailing lists).

The underlying problem is that the Internet community bodies have been captured by industry, and by a narrow segment of civil society that is beholden to industry (exemplified by the global Internet Society, ISOC). As a result Internet technical standards are biased in favour of a US-led, free market-directed model of competition, which fails to incorporate broader public interest objectives (this has even been formalised in the OpenStand Declaration). Standards development that involves issues such as consumer privacy and access to knowledge is a political process, and as such, capture by powerful interests becomes inevitable unless safeguards are set in place.

The industry-led specifications that have resulted from this paradigm speak for themselves. In July this year, industry released a standard for mobile apps to notify users of data collection using short-form notices, rather than lengthy privacy policies. This voluntary standard, although based on a supposedly multi-stakeholder process set up by the US National Telecommunications and Information Administration (NTIA), has been criticised by American consumer groups both for its substance and for the process by which it was developed, which allowed an industry-dominated panel to push through a code that served their commercial interests.

Another example is the United States’ Copyright Alert System (CAS), by which Internet users’ privacy is sacrificed to facilitate the delivery of copyright infringement notices to those who share content online – the system does not take account of “fair use” or other copyright user rights. This follows on from the 2007 Principles for User Generated Content Services, also written by industry, that were adopted by most major content platforms, and from codes agreed by major credit card companies and payment processors in June 2011, and by advertisers in May 2012, to withdraw payment services from websites allegedly selling counterfeit and pirated goods. No consumer representatives (or even elected governments) had any say in the development of these codes. How is this a “multi-stakeholder” model?

True multi-stakeholder processes (as defined at the 2002 Earth Summit, long before the Internet technical organisations appropriated the term) are:

processes which aim to bring together all major stakeholders in a new form of communication, decision-finding (and possibly decision-making) on a particular issue. They are also based on recognition of the importance of achieving equity and accountability in communication between stakeholders, involving equitable representation of three or more stakeholder groups and their views. They are based on democratic principles of transparency and participation, and aim to develop partnerships and strengthened networks between stakeholders.

Although often described (for example by the United States government, and bodies like ISOC that follow US foreign policy) as “the” multi-stakeholder model of Internet governance, the Internet technical community organisations actually don’t tend to embody these principles very well. Although they are typically open to participants from stakeholder groups, no attempt is made to balance their participation so that the voices of weaker stakeholders (such as consumers) are not drowned out by those with the most resources or privilege. Having open mailing lists is not enough, and indeed can mask abuses of the process – after all, it has been revealed that the NSA used IETF processes with the aim of weakening encryption standards.

Continue reading in “Web Consortium’s failures shows the limits of self-regulation” at Digital News Asia.

Why civil society’s role as Internet rights watchdog doesn’t scale, and what to do about it

How quickly the Internet communities have gone from rallying behind the banner of Internet freedom last year, fresh from our victory in the defeat of SOPA and ACTA, to the position where now Byron Holland, the CEO of CIRA, the Canadian Internet Registration Authority, can proclaim “the Internet as we know it is dead“.

How did this happen?  The obvious answer is that this was a result of the PRISM revelations, but I think behind this lies a new awareness of how overconfident many of us were in the ability of the existing Internet governance regime, at national or global levels, to channel public interest concerns expressed by Internet user communities into policy processes.  Especially in the very typical case where there is no democratic process to represent the interests of those whom those policy processes affect.

Other examples are not difficult to find – some of them in countries that are not regarded as free, such as Vietnam’s clampdown on the online publication of reports of current events, but others, such as extra-judicial domain name seizures, in countries that had been the champions of so-called Internet freedom.

Human rights infringements of users who are not democratically represented are not limited to governments, but extend to transnational corporations also.  Think of Microsoft, promising that its users’ privacy was its top priority whilst at the same time knowingly putting in surveillance backdoors for the NSA.  Think of Google’s recent admission that Gmail users have no legitimate expectation that their emails will be kept private.

And who regulates the global activities of these companies?  Again, national governments; thus the only protection that Internet users worldwide have that their rights will be respected is the extent to which national governments recognise and enforce them.  Thus Facebook’s latest terms of service revision, making it clear that users should expect to have their names and photos shown in association with third party companies without their consent, was only prompted because US authorities demanded it.

Since Facebook operates globally, why is it the US government alone that gets to say what its privacy policies should be?  Or do we feel any better if 190 other countries should also be able to ask for changes to Facebook’s privacy policies, so long as Facebook it has a presence in their jurisdictions?

It should, of course, not just be nation states or corporations, but the people – including non-state transnational networks of people – who have a say in the policies that apply to them.  Although they may not be citizens of the countries or customers of the corporations who apply those policies, they nevertheless have human rights that those countries and corporations are obliged to respect.

Unfortunately the international human rights framework does not have the machinery to prevent the infringement of rights ex ante.  The only way to do that is to have civil society human rights defenders participating in the development of policies that will affect Internet users worldwide.  This can mean giving them a seat in all of those policy development processes, which does happen in some places, like the Brazilian Internet Steering Committee (CGI.br) and the OECD’s Committee for Information, Computer and Communications Policy (ICCP).

But that doesn’t scale.  There are just too many possible venues and civil society’s capacity is too limited.  So rather than giving users a seat at every single level of every single government and company, an alternative is empower users to participate in the establishment of globally-applicable public policy principles, in collaboration with other actors in the Internet governance ecosystem including governments, corporations and technical community bodies, which those actors can draw upon in setting their own policies, and to establish a yardstick against which those actors can be held to account.

This is what many of us thought we would be getting eight years ago at WSIS: a multi-stakeholder forum, the IGF, that could develop policy recommendations in order to help institutions and actors to act in a coordinated and human rights-compliant way, along with a more formal mechanism of enhanced cooperation for governments, and perhaps others, to incorporate those recommendations into their policy processes.

But fast forward to 2013 and what do we have?  Well the IGF has become of such central importance as a global governance institution that it was almost cancelled this year, because nobody was serious about funding it; the ITU has shut civil society out from its Council Working Group on international Internet-related public policy issues; the US government’s propaganda about Internet freedom at WCIT last year has been exposed as more imperialist rhetoric; and we are still arguing about what (if anything) enhanced cooperation even means, rather than making the changes needed to actually implement it.

So it’s crunch time.  As Byron Holland points out, the Internet as we know it is dead.  The status quo is completely broken.  We need to create a more globally democratic way of dealing with border-crossing Internet-related policy issues.

And thankfully this year we have the chance to do that, through the CSTD Working Group on Enhanced Cooperation.  A joint civil society submission on this topic was sent to the CSTD last week, and I’m going to invite you all to endorse it, if you haven’t already.  You can read the text online, but here are some of the main points of the statement in brief (with apologies for any inaccuracies in my summation):

  • It acknowledges that there are a range of policy issues beyond the narrow issue of the political oversight of ICANN, for which there is no globally democratic process to ensure that human rights and other public interest perspectives are taken into account.
  • It acknowledges that such a globally democratic process cannot involve government representatives alone, or be left to the private sector or technical community alone, but will require multi-stakeholder involvement; however it does not accept that the Tunis Agenda’s description of the roles of the stakeholders in this process is adequate or accurate.
  • It asserts that in thinking about new frameworks or mechanisms, it would be productive to distinguish between the political oversight of ICANN and the broader public policy issues in other areas, such as privacy, freedom of expression and so on.
  • It agrees that the process of developing more globally democratic processes should take place in phases, and that we are now moving into a phase of more formalised transparency and reporting and collaboration among all institutions and processes dealing with Internet governance.
  • But ultimately it accepts that at least one new framework or mechanism to address global Internet related public policy issues that don’t already have an appropriate home is likely to be needed, and this should be developed through a process involving all stakeholders.
  • As to what shape that new framework or mechanism should take, we have some divergence – some favour an innovative UN-based mechanism, with extensive multi-stakeholder participation.  Others seek for more of a break from the existing intergovernmental system, and propose a natively multi-stakeholder process, that might be based at the Internet Governance Forum.

These ideas will be discussed further at the second two-day Best Bits meeting ahead of the global IGF in Bali this year, and again at the workshop Who governs the internet – how people can have a voice at the global IGF.  This workshop at the Asia-Pacific Regional IGF is an important feeder into that global meeting and workshop.  So I hope that we will have a rich discussion both within the panel and with the audience.

(The above is my presentation on Internet governance for human rights and democracy at the 2013 APrIGF.)

First reaction to the cancellation of the IGF

News of the cancellation of the Bali IGF meeting has been the hot topic of discussion since last Thursday, after news broke that there was a shortfall of $1.05m in the event’s budget of $2.2m. The Indonesian Ministry of Communication and Information had contributed only $250k, passing the baton to a local organising committee to raise the balance. To make things more interesting, the shortfall was only a little shy of the bill from the United Nations for its official travel and security detail: a cool $900,000. And then there was the brouhaha about the local organising committee’s panelists for cash deal (“Major [private sector] sponsors may recommend speaker(s) for the closing ceremony”, etc). Fun times. None of this should ever have happened; the IGF was created to perform a public function: as a forum to help fill an observed gap in global mechanisms for coordinating public policy on Internet-related issues. As such, the need for public funding seems obvious. But far from contributing funding, the extent to which the UN has actually been leeching money from the IGF has now been revealed. Moreover, according to participants in the former CSTD Working Group on Improvements to the IGF, UN officials were steadfast in refusing to even consider a recommendation that the UN contribute funds to the forum. So that attitude has borne fruit in the likely cancellation of the IGF – all over $1m or so. Can we imagine a WTO meeting being cancelled over $1m? The IGF has well and truly failed if it isn’t even worth that much to save.

The Role of Governments in Internet Governance

Here is a presentation that I delivered to Diplo Foundation on the Role of Governments in Internet Governance, using three recent case studies – the ITU’s World Telecommunication/ICG Policy Forum 2013, the US Congress bill affirming US policy on Internet governance, and the ICANN GAC’s Beijing Communiqué on the new gTLD programme. For a better look at what I’m talking about while you listen to the video, download the slides.

Are intergovernmental organisations a stakeholder group?

Last weekend I participated in the joint GigaNet and Graduate Institute workshop, The Global Governance of the Internet: Intergovernmentalism, Multistakeholderism and Networks. Here’s what I had to say about whether intergovernmental organisations are or should be stakeholders in the multi-stakeholder system of global Internet governance; in other words, whether in a multi-stakeholder forum that addresses global Internet public policy issues, whoever that forum might happen to be convened by, are IGOs entitled to participate as stakeholders in their own right.

According to the Tunis Agenda, the preferable view is that IGOs are not stakeholders. Paragraph 34 adopts the definition from the Working Group on Internet Governance which states that “Internet (WGIG) governance is the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.”

Paragraph 35 then goes on to say “We reaffirm that the management of the Internet … should involve all stakeholders and relevant intergovernmental and international organisations”. So clearly there is a distinction being drawn there. It also says “Intergovernmental organisations have had, and should continue to have, a facilitating role in the coordination of Internet-related public policy issues.”

So according to the Tunis Agenda IGOs are not be a stakeholder. But then we have to look at the practice, and in practice, increasingly, they are. An important precedent for this was set in 2010 when the CSTD Working Group in Improvements to the IGF was formed, comprising of 22 governments, plus five representatives each of the business community, civil society, the technical and academic community and intergovernmental organisations, who were all described in the same terms as “stakeholders”.

This precedent was followed in 2012 when the Working Group on Enhanced Cooperation was formed, with the same distribution of stakeholders, and without any further discussion as to whether it was appropriate. To the extent that a precedent has been set, is it too late to argue that it should be rolled back in future multi-stakeholder Internet governance arrangements? I consider that we can and should argue for this, on the following three grounds:

  1. The CSTD working groups have not actually been multi-stakeholder bodies. They are intergovernmental groups, in which other stakeholders are simply present as “fully engaged” observers. In that context, the composition of these groups cannot be taken as authoritatively expanding the specification of three stakeholder groups in the Tunis Agenda.

  2. The selection process for the IGF MAG does not recognise IGOs as stakeholders, only as observers (although as with the CSTD working groups, the distinction is largely formal). As the only fully multi-stakeholder body that came out of WSIS, the composition of the IGF MAG should be given some weight.

  3. Most fundamentally, IGOs are not a stakeholder because unlike governments, the private sector and civil society, they do not have a significant stake in the development of Internet-related public policy, which is, after all, what being a stakeholder is all about.

This is not to say that IGOs should not be involved in multi-stakeholder Internet governance processes. But this is because of their instrumental value – that is, it is useful to have them involved in multi-stakeholder governance processes because they can facilitate those processes, as the UN Office at Geneva facilitates the IGF, for example. But their involvement is not a plank of the legitimacy of those processes. This is particularly so because governments are stakeholders directly, so there is no room even for a derivative claim of legitimacy by IGOs,

Multistakeholder opinions: an experiment for the IGF [draft]

At last week’s World Telecommunication/ICT Policy Forum (WTPF), a proposed opinion was tabled by Brazil titled Operationalizing the role of Government in the multi-stakeholder framework for Internet Governance. In an earlier form discussed at the ITU’s Informal Experts Group (IEG) the proposal had not reached consensus. But by 16 May, the revised and much shortened version of the proposal was tabled at the WTPF drew broader interest and support. Due to lack of time however, it was not possible to reach any conclusion on the proposed opinion.

Various options were suggested for the opinion to be discussed elsewhere. The Chair proposed that the opinion could be considered at the Council Working Group on international Internet-related public policy issues (CWG-Internet) and thence taken to the ITU Council for approval. The CWG-Internet is a government-only group which meets in closed sessions, although with open consultations. The discussion of the proposal in such a setting would therefore not be multistakeholder, unless the CWG-Internet were significantly reformed (which cannot be taken for granted, as a 2012 proposal by Sweden to do so has failed to progress).

There is a CSTD Working Group on Enhanced Cooperation with multi-stakeholder participation, which could consider the issues raised in the opinion, but some member states objected that they are not participants in that Working Group. An third proposal was that the opinion could be discussed at the IGF. But a number of governments resisted this suggestion on the ground that the IGF does not produce outputs, and the topic was considered of such importance that there should be a formal output document reflecting a set of agreed conclusions on that topic.

The purpose of this note is to suggest a way forward, whereby the IGF could step up and meet the unmet need for a multistakeholder forum for work on the draft opinion from Brazil, through a new pilot process that aims to produce a non-binding output document, that governments and other stakeholders alike could choose to support.

The question of outputs from the IGF

The fact that the IGF does not produce outputs has been supported by some and criticised by others. Those who support this have often expressed concern that the pressure to produce outputs could stifle the free exchange of views, and that in any case there are no mechanisms for the IGF to produce such outputs. Those who criticise it point out that the IGF’s mandate specifies that it should produce be able to make recommendations on emerging issues where appropriate, and that its lack of mechanisms to produce such outputs is not inevitable, but rather flows from choices made when defining its structure and processes, which according to the Tunis Agenda should be “subject to periodic review” as the IGF continues to evolve to meet the needs of its multistakeholder community.

Indeed, in 2010 the UN Secretary-General acknowledged the perception “that the IGF had not provided concrete advice to intergovernmental bodies and other entities involved in Internet governance”, and “that the contribution of the IGF to public policy-making is difficult to assess and appears to be weak”. When the General Assembly renewed the IGF’s mandate the following year, it did so “recognizing at the same time the need to improve it, with a view to linking it to the broader dialogue on global Internet governance”. The task of recommending such improvements fell to a CSTD Working Group, which suggested that the IGF should “develop more tangible outputs”; including that a set of policy questions should be posed at each meeting, and that “the results of debates on these questions … should be stated in the outcome documentation”.

This note proposes a mechanism for beginning to implement the CSTD Working Group’s recommendation, in a deliberately modest way that does not require substantial structural reforms to the IGF, nor the expansion of its agreed mandate. The Tunis Agenda defines Internet governance to include the development by all stakeholders of shared decision-making procedures, so it is only appropriate that the IGF be bold enough to experiment with the development of such procedures.  No experiment is guaranteed of success, but from its results, we can learn and continue to refine the multistakeholder model of governance.

Multistakeholder opinions process

The production of a multistakeholder opinion at the IGF could work as follows:

  • As soon as possible, the existing draft text on “Operationalizing the role of Government in the multi-stakeholder framework for Internet Governance” as proposed by Brazil would be posted to a dedicated official IGF website that would enable paragraph-level comments to be added by registered users from all stakeholder groups.
  • Stakeholders would also be encouraged to discuss the proposal and the paragraph-level comments on diverse Internet mailing lists and Web fora, including existing lists maintained by stakeholders such as ISOC and the Civil Society Internet Governance Caucus, and a multistakeholder list to be maintained by the the IGF Secretariat. Links to known discussion fora would be included on the IGF website alongside the draft text.
  • Regional IGF meetings that are held between now and the global IGF should be encouraged to hold workshops on the draft text to gather feedback and suggestions, that would be summarised and submitted to the global IGF in writing. Links to these submitted reports would be included on the IGF website alongside the draft text.
  • Two months before the meeting, the submissions and comments would be gathered into a concise background paper by a multistakeholder working group of the IGF MAG. The background paper would seek to define and group areas of agreement and areas of difference around each paragraph of the draft opinion.
  • At the global IGF, a full morning session and an afternoon session would be set aside for development of a multistakeholder opinion based on the draft text.  In the first part of the morning session, one speaker from each stakeholder group would speak on the issues defined in the background paper, beginning with a representative from the government of Brazil. This would proceed into a period of moderated open discussion.
  • In the second part of the morning session, the room would be separated into groups, to which participants would be assigned randomly. Groups would be equipped with writing materials, copies of the background paper, a flip chart, and a neutral facilitator. One group would also be connected to remote participants. Each group would be tasked with addressing one points of disagreement over the draft text, with the aim of either reaching a view on one side or other of the disagreement, or proposing a compromise.
  • After a period defined by the moderator (say 20 minutes, depending on how many groups there are), the groups would rotate so that by the end of the morning session each group has had the opportunity to consider each area of disagreement.
  • Over the lunch break, the moderator of the session would compile together the outputs from the groups into a new composite text, based on the opinions that were reached most strongly within the groups. In the first afternoon session, this composite text would be presented and opened for discussion.
  • The session would aim to reach a rough consensus amongst its participants as assessed by the chair, but if a consensus of all participants cannot be reached, the chair could decide either to close the text in the form that has been most broadly agreed, or not to close the text, in which case in lieu thereof a report of the session would be prepared recording the points on which there were agreement and disagreement.
  • Any such text would not be binding, and would not be described as a multistakeholder opinion of the IGF, but a multistakeholder opinion developed at the IGF. The IGF Secretariat would maintain a register of those who have endorsed the statement, which would be opened first to those present at the session, including those participating remotely.

A conversation with the technical community

In my series of posts about Internet freedom in a world of states (beginning with this one), I tried to condense my thoughts on Internet governance reform into the simplest possible terms. But still I have had to clear up misunderstandings, and state my position even more starkly. I’ve been doing that on an ISOC mailing list, from which I present some key excerpts below. (This conversation is kicked off by Dave Burstein, but has been carried on between myself and Nick Ashton-Hart over the past couple of days.)

Dave: One issue is that much of the world is angry they are effectively excluded from Internet governance. They are right, and the powers that be should broaden the process.

Nick: I don’t agree. What processes related to the development of the Internet exclude anyone – except those, like the ITU, which explicitly don’t allow everyone in the room? I don’t know of any, from IETF, to W3C, to ICANN, the RIRs, the London process on spam, etc.etc. etc.

What processes, specifically, do you believe exclude ‘much of the world’?
Jeremy: Whatever “processes related to the development of the Internet” might mean, it’s certainly narrower than “Internet governance” if it is limited to those organisations that you list.  What about the Trans-Pacific Partnership, which is currently negotiating rules about free flow of information online, and intermediary liability amongst other topics, all behind closed doors?  What about the OECD which is pushing its Council Recommendation on Principles for Internet Policy Making as globally normative?  What about APEC which is rewriting cross-border privacy laws and is in many ways even less open and transparent than the ITU?  What about the US government itself that makes decisions that impact the global Internet – such as seizure of domain names owned and operated by and for foreigners – without affording a hearing to those affected?
I’m sure that those who support the status quo and oppose reforms to Internet governance such as enhanced cooperation think they are doing the right thing.  But it is a very short-sighted if not blinkered approach, which often has unintended consequences.  For example, WCIT need never have happened if the IGF had been allowed to assume the role that the Tunis Agenda laid out, involving the development of non-binding recommendations, which could have provided a safety valve for the disquiet and frustration that blew up at WCIT instead.  The IGF might now be a lost cause, but we are again at a similar crossroads with the enhanced cooperation process.  This could go either way depending on whether the technical community continues to obstruct the evolution of existing arrangements on the false pretext that the status quo is fully inclusive, or is willing to keep an open mind.

Nick: Sorry, but if we go looking for places where the Internet is in some way connected to the dialogue, we rapidly include every public policy framework in the world on every subject. Suggesting that because there are places where the Internet is touched that have a barrier to participation in that context becomes meaningless.

Jeremy: Well, now we are getting somewhere. You are disagreeing with the definition of “Internet governance” which is rather fundamental. All of the above issues and institutions that I list are unambiguously Internet governance issues under the accepted definition of WGIG. I am not just going off on a lark by suggesting that discussions of enhanced cooperation might relate to issues such as these, rather than technical issues dealt with by the I* bodies.

It seems to me that the knee-jerk reaction that technical community representatives have against suggestions of reform to existing arrangements nearly always stems from misunderstanding that it is suggested that reforms to technical processes are being sought. With the exception of the big one (US control of the root), this is not the case. There are real and current concerns about public policy issues such as intellectual property enforcement, privacy, freedom of expression and so on that are central to civil society’s concerns about Internet governance reform.

Nick: And central to many others, who work on these now and in many cases have for many years. Putting everything into one giant basket and suggesting it all has to be linked to everything else just guarantees no problem ever gets solved.

Jeremy: Whereas ensuring that these issues continue to be restricted to their North-based silos just ensures that civil society voices and developing countries are left out when policies that affect their interests are made – which suits those who benefit from the status quo just fine.

Nick: The many advocates from all over the world working on IP, privacy, and freedom of expression would take umbrage at your blanket assumption that none of them are engaged, I think.

Jeremy: They (and I am one of them) are engaged in less open, multi-stakeholder institutions, most of them controlled by developed country blocs and/or multinational corporations, which do not have any or adequate means of receiving public interest perspectives into their deliberative processes. I gave a list of a few of them earlier in this thread.

What such advocates want is the opportunity to benefit from the same open, multi-stakeholder policy development processes that the Internet technical community has, mostly, enjoyed all these years (though even those can be improved, as we have been discussing). Is this too much for them to ask?

By obstructing the development of enhanced institutional mechanisms, processes, fora, platforms or what-have-you, that could enable those who are excluded from current mechanisms to participate in public policy development on a more equal footing, you (here a collective you, meaning the technical community representatives) are denying them what you already have.

You are in effect telling them that multistakeholderism is fine for us, in our narrow technical sphere of Internet governance, but we don’t want you to have the same opportunities in advocating for broader Internet governance principles to support the public interest. You can just demonstrate in the streets or write letters to your politicians if you want to have a voice in Internet governance arrangements – or if you’re a small developing country, you can ask the ITU to step in.

Frankly, the technical community has no place in denying excluded stakeholders a voice in Internet governance arrangements that fall outside its own mandate. Whilst it may feel that it is only protecting its patch by opposing reforms to the IGF or at the CSTD Working Group (yes I know I’m jumping the gun, so prove me wrong in six months time), fine then: focus your energies on protecting that patch.

The Tunis Agenda already makes clear that the enhanced cooperation mandate extends only to “international public policy issues pertaining to the Internet, but not in the day-to-day technical and operational matters, that do not impact on international public policy issues”. So keep that as your touchstone, and stop attempting to derail the broader process.

It is no business of yours to obstruct the broader enhanced cooperation mandate, or to perpetuate the falsehood that the mandate has already been fulfilled. This stance is doing untold damage to the interests of communities that you do not represent, including future generations of those who will be affected by laws and policies that are being made today, without multi-stakeholder input.