A Long Way to Go Civil Society Participation in Internet Governance

MIND #2
Internet Policy Making
Inhaltsverzeichnis
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Responses - Stakeholder Civil Society

Anriette Esterhuysen, Association for Progressive Communications

Abstract
The internet is not a level playing field. We need to deal with conflicts of interests, differences in accountability and in ability to participate. Multi-stakeholder participation in internet policy-making has a long way to go if it is to really deepen democracy.

A Long Way to Go - Civil Society Participation in Internet Governance

Introduction

Bertrand de La Chapelle presents a thoughtful reflection on multistakeholder governance as a means of deepening democracy. As always with his writing, he touches on history, political science and social behaviour. His views are grounded in his personal experiences of ICANN and the IGF which gives them a sense of authenticity and immediacy, but also presents certain challenges which I will discuss below. Bertrand’s paper intends to:

1) explain why multistakeholder governance was deemed necessary in Internet matters 2) draw some lessons and implementation principles from the two main experiments 3) identify issues that need to be addressed for multistakeholder governance to fulfill its potential

My comments will respond to each of these three tasks, and will conclude with a few general reflections.

Why Multistakeholder Governance was Deemed Necessary in Internet Matters

ertrand responds to this question with historical narrative (the story of the WSIS) and analysis (reflections on the internet and the changing nature of governance in an inter-connected world, particularly in relation to the cross-border nature of the internet). All his reflections are relevant, but what is missing is both simple, and important.

The Internet is Not a Single, Finite Entity-ig as an Ecosystem

What we think of as “the internet” is a complex net of interconnected platforms, protocols and institutions. Bertrand does elaborate on the complexity of stake- holderships, jurisdiction, and competing or conflicting international institutions, but he still presents the internet as an integrated entity that exists in a kind of “online parallel universe”.

In reality the online world is inextricably linked to the physical world and therefore internet governance has to be understood as a governance ecosystem that involves offline and online processes. Solutions to deepening democracy in internet governance cannot therefore be found solely in bodies or processes dedicated to internet specific decision-making. I am not arguing that Bertrand ignores the inter-connectedness of online and offline policy and regulation as he does address it, but, he does not factor these connections sufficiently in his discussion of multistakeholder participation in deepening democracy in internet governance.

The Internet has Evolved as a Public Space, But it is Not Publicly Owned or Controlled

Therefore its governance has to involve multiple processes, and stakeholders. The internet evolved through the efforts of multiple stakeholders from the public sector (research, education and the military), technical community, business, civil society and users. It exists in our day-to-day lives as a public space. But, it is not publicly owned, or controlled.

In the words of one of my colleagues, Valeria Betancourt:

“Internet governance is one of the battle fields in which both the structural/material and the symbolic conditions for accessing the internet are in dispute”. This makes its governance particularly complex, and does require new approaches.

Lessons and Implementation Principles From the Two Main Experiments: ICANN and the IGF

Why Does it All Sound so Easy?

Somehow this section, while using a relevant set of criteria (e.g. openness, transparency, agenda-setting etc.), makes multistakeholder governance sound much more straightforward than it has been in my experience. The examples presented (IGF and ICANN) are substantially different. Bertrand does discuss this difference in 2.6 Decision-shaping vs. decision-making. But he does not really address the resulting differences in the implications of being able to participate, or not participate, from the perspective of different stakeholders.

Resource and knowledge constraints need more mention. ICANN is complex, and participating effectively requires substantial commitments of time and resources. How can civil society keep up? Even developing country governments find it hard to participate effectively in the GAC, and in the IGF. There are internet related companies active in ICANN that have more internet policy experts on staff than there are in the entire administrations of most African governments. Differences in the resources to participate also impacts on the constant “self-improvement” of these processes, which Bertrand highlights. Not all stakeholders have the capacity, or time, to participate.

This inevitably skews improvement in the direction of those who are invested AND who have the resources. This point is discussed in more detail below (Issue 3). Knowledge constraints are equally important. The less informed individuals and institutions are not able to fully participate in internet governance fora. Coordi- nated efforts are needed to make internet governance decision shaping and making spaces accessible, not just open, participative, inclusive and transparent. This applies not only to civil society, but also to governments and business from developing countries. This lack of “access”, be it real or perceived (and it is both) impacts on the legitimacy of multistakeholder processes. In general this section overlooks the ongoing, and intense, “enhanced cooperation” debate. Whatever one’s stance on ICANN, or your definition of the term “enhanced cooperation”, that Bertrand ignores that ICANN is contentious and that it lacks legiti- macy in the eyes of many actors from all stakeholder groups is surprising. It is important to discuss this when reflecting on multistakeholder governance. Often governments’ criticisms of ICANN are per- ceived as being based in resistance to multistake- holder participation. Civil society critique is per- ceived as being anti-business. This is a crude picture. Unpacking it can help get beyond the surface of multistakeholder participation and enable one to delve into the real politics of power and interest which intersects with multistakeholder processes in internet governance. Personally, as a civil society actor, I find it disappointing that ICANN is presented as a successful instance of multistakeholder governance. It is an interesting, and challenging example, but is it successful? Many developing country government and business stakeholders have repeatedly expressed the view that they are not able to participate effectively. And it is not a body whose decisions civil society has been able to influence very successfully. Bertrand’s most interesting reflection in this section is the one he closes with:

“Shifting from a principle of representation to a principle of participation has produced a set of practices that now self-replicate in new structures. Examples of this are the network of national, regional and global IGFs and the potential fractal replication of the ICANN model in the internal governance of future gTLD registries. This capacity to spread and build a larger infrastructure from a relatively limited seed is similar to the way in which the Internet and the World Wide Web developed out of a few connected nodes or a single online database. This is a promising indication with regard to the growth potential of these experiments. One should, however, remain vigilant with respect to key implementation challenges and even dangers of things going astray.”

Issues That Need to be Addresses for "Multistakeholder Models" to Fulfill Their Potential

Bertrand mentions important issues such as ensuring inclusive participation; fighting information overload; synthesizing discussion; preventing capture; building legitimacy, among others. His remarks on inclusive participation cannot be over emphasised. They are vitally important:

“The right to participate and the open nature of multistakeholder processes do not by themselves guarantee the effective participation of relevant stakeholders. On the one hand, due to lack of awareness, funds, or time, many disadvantaged ac- tors do not take part in the Internet Governance ‘traveling circus’ of meetings around the world, often held in expensive venues. Proactive measures like remote participation and fellowship funds, as well as the replication of IGFs at national and regional levels, alleviate part of this problem and must be strengthened. This new approach is certainly not perfect, but the alternative is remaining in a traditional system that offers no capacity for marginalized actors, let alone individuals, to be heard.”

On “building legitimacy” he might be over-simplifying. The process of legitimacy for a dialogue forum such as the IGF and for a decision-making forum such as ICANN are fundamentally different. Replication is not enough. Legitimacy will depend not just on the “foundation” of the process, as Bertrand rightly points out, although this foundation is not irrelevant. Perhaps the simplification is possible because Bertrand does not talk about accountability. A body that makes decisions that are supposed to be in the public interest needs to be held accountable for the implications of those decisions, and for how they were made. The questions of who can hold such institutions accountable, and how they can do so, are key to ensuring legitimacy.

Another important factor that he overlooks in relation to legitimacy is how these “new” multistakeholder governance institutions or processes relate to existing international agreements and standards such as the Universal Declaration of Human Rights, and linked covenants on civil and political and social, cultural and economic rights. These founding human rights agreements are as fundamental to issues of critical internet resources and internet governance as the IP name and numbering system itself.

The world, of which the internet is a part, is not an equal place. There are vast differences in access to resources and power, between countries, and within countries. Governance bodies and processes need to recognise these differences, and try to redress them to achieve legitimacy over time and, as Bertrand says in his first sentence, if they are to fulfill his notion of the project of world history which is the continual endeavor “to find better and better ways of organizing ever-increasing human societies.”

General Reflections

Stakeholderships and Power

Bertrand advances the discussion of stakeholdership and multistakeholder participation. But this discussion does not adequately reflect significant differences between stakeholder groups, nor the differentials in their access to resources, influence, and ultimately, political and economic power. Large multi-national internet companies have the resources to influence policy-makers, to litigate against them if they don’t like the policies they make, to make their own de facto policies. As Bertrand says, they can be said to run “digital territories” governed by the terms of service agreements they draw up. Agreements which few users read, and which serve the primary purpose of protecting the interests of the company.

Smaller internet businesses do not have this power. Some types of internet businesses such as internet service providers are increasingly under threat by the erosion of network neutrality and the rise of companies that provide internet content, infrastructure and services. Small and medium sized businesses frequently do not have the resources to engage in or resist government interference with their services or to bring diverse perspectives to internet governance and multistakeholder processes.

Governments still retain primary power at national level and make laws that greatly impact on people’s use of the internet (e.g. the right to anonymity, freedom from censorship and secure online transactions). Often government decisions in global forums are influenced by powerful commercial lobbies “at home”. This is particularly evident in the case of intellectual property rights regulation and enforcement.

Civil society and consumer interest groups try to introduce balance, and public interest in internet governance processes, but, internet policy is an area where there is still limited public awareness and, particularly in developing countries, few civil society watchdogs.

Simply bringing all these actors into common “governance” spaces does not diffuse the differences in power and does not guarantee a level playing field.

It would be interesting to reflect on how soft power has been increasingly become key in influencing the global internet governance arena. Bertrand does touch on this. Is soft power changing the configuration of weight that the diverse stakeholders have in internet governance decision making processes? And, if this is the case, what are the public interest implications?

Multistakeholderism Versus Multistakeholder Participation

Bertrand like so many others in the IG space makes use of the term “multistakeholderism” as if it is an established philosophical approach, based on commonly understood principles. I do not believe multi-stakeholder participation, as outlined in the WSIS principles, has reached that stage. Nor do I think we should strive for such a stage.

What we should be striving for is represented by the other concept Bertrand uses: deepening democracy. Multistakeholder participation is an essential tool for better, more inclusive internet governance, and, if the circumstances are right, it can deepen democracy. But it is also fraught with contestation. Bertrand cuts to the core of some of these in his mention of the ambiguity of “in their respective roles”. But unfortunately he does not develop this idea sufficiently.

Multistakeholder governance processes and institutions need to unpack the “in their respective roles” idea if it is to work. Questions that need to be addressed include:

— Does the role of governments which, if they are playing this role well, involve furthering the cultural, social and economic and civil and political rights of its citizens, mean that they require differ- ent levels of access to those of other stakeholder groups in global multistakeholder internet governance?

— Should the participation of business be through chambers of commerce or industry bodies such as associations of publishers and internet service providers, or, can individual companies also participate in their own right?

— When it comes to the public interest, what weight is given to diverse civil society views, and who decides? For example, does a civil society group that claims to protect public morality by countering certain types of online content have equal claim to be representing the public interest as a coalition promoting freedom from censorship on the internet?

— Should the modalities of participation not recognise that civil society, which represents the most diverse and multiple interest groups, including the least powerful sectors of society, require additional voice and support?

— Are “respective roles” fixed, or do they change depending on the issue at stake? For example, in some types of decisions, business entities can have common claim to the broader public interest (e. g. discussions on freedom of expression) while in others they might be representing the narrower interests of the specific profitability of some of its sectors (e. g. in the case on discussions of intellectual property enforcement). This diversity of roles and interests is what makes multistakeholder models rich, and necessary, but it also means that they have to be approached thoughtfully, with consideration to the types of decisions being made. Are there some respects in which “respective roles” are fixed?

— Are respective roles in governance to be matched by respective roles in accountability?

Public policy is supposed to be grounded in the public interest. But, the public interest is contested terrain with multiple actors claiming custodianship.

Multistakeholder participation in internet policy-making has a long way to go if it is to really deepen democracy. We need to consider competing rights, and responsibilities. We need principles, and procedures that are grounded in international human rights standards and public interest principles. We need to address conflicts of interest between and within stakeholders, and also the differences in their accountabilities for the consequences of the decisions that are made.

Bertrand’s paper is an important contribution to this process. We need more discussion, debate and critique. Multistakeholder models of participation and governance need to be deepened themselves to fulfill their potential to “deepen democracy”.