Is there a Political Will? A Distributed Global Internet Governance Mechanism

Responses - Stakeholder Government & Parliament

MIND #2
Internet Policy Making
Inhaltsverzeichnis
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Everton Lucero, Ministry of Foreign Affairs, Brazil

Abstract
In the absence of an international framework to provide coordination, we face the creation of diverse, non-comparable, often contradictory and even irreconcilable sets of national rules. Government representatives should contribute actively to a “distributed global governance framework” – all we need is political will.

Is There a Political Will? A Distributed Global Internet Governance Mechanism

Bertrand de La Chapelle elegantly argues that, as a result of the Internet, human communities are going through a processs of profound restructuring and that new “trans-border spaces” tend to challenge traditional policy-making means. Global processes arising from the use and management of the Internet will lead, according to La Chapelle’s view, to a deepening of democracy, with greater openness, more transparency and increased legitimacy to exercise policy-making authority on a global level. The multistakeholder model, continues Bertrand, contributes to the creation of a distributed global governance framework, which is not to be regarded as promoting the forma- tion of a single global government.

It is true that the Internet created a highly sophisticated and distributed system of power over information. When compared to radio, TV or newspapers – means of communication generally controlled by broadcasting companies with a predefined editorial mindset – the Internet stands out as a way (or many ways) of creating new avenues for communication and information, as a medium able to generate innovative networked arrangements and connections among people. In that sense, the Internet represents a true paradigm shift, and one which is yet to be grasped by the average mind. The consequences this will have on the way our civilization is structured are still entirely unpredictable.

In order to make a case around the proposed subject of “Global Internet Governance Policy Making” and contribute to the dialogue initiated by La Chapelle’s article, it is necessary to step back for a moment and contemplate, from a fresh persective, the big picture with regard to current Internet governance arrange- ments. As a background, I propose that we consider the way our societies are organized and define rules of coexistence at international level. This task is basically undertaken through organized structures of power, around the historical nation-states.

The notion that “Code is Law”, promulgated by Lawrence Lessig since 1999, challenges the sovereignty of nation-states to rule over the Internet, not as a result of a commitment entered into through any interna- tional treaty, but rather through the states’ inability to regulate the use of the new technology, whose standards are defined in private fora virtually devoid of governmental influence. States are increasingly unable to effectively monitor the countless interactions that occur in today’s globally interconnected world. As a consequence, the rules they create for government at international level – traditional intergovernmental arrangements – are equally incapable of dealing with the endless range of different behaviors that on a global scale by virtue of Internet applications, protocols and the like give rise to the world over.

However, as Daniel Drezner and Goldsmith and Wu pointed out, one should not underestimate the ability of states to legislate over the use of the Internet in their respective territorial jurisdictions. In the context of Internet governance, nation-states appear as entities with the authority and power to act within their respective borders through national law-making and regulatory processes. In the absence of an international body that provides coordination, or at least allows for the harmonization of national laws and regulations related to Internet use and manage- ment, diverse, non-comparable, often contradictory and even irreconcilable sets of national rules may well transpire. These, in turn, could have adverse effects on the future development of Internet-related technologies.

The World Summit on the Information Society (WSIS) reaffirmed the role of states in defining public policy related to the Internet. WSIS was essentially a government-led exercise, similar to other thematic summits convened by the United Nations. Its final documents were negotiated by government envoys to the summit. The procedural rule allowing for greater participation of civil and private entities at WSIS, consacrating the “multistakeholder principle”, was negotiated by government representatives during the preparatory process to the summit. multistakeholder- ism was, therefore, an option agreed upon by governments. In this context, it seems odd that a paragraph needed to be included at the final documents expliciting the role of governments to define public policies. Such a role has always been in the hands of government officials formally designated to take part at international negotiations and is the essence of multi- lateral diplomacy. Why was there a need for WSIS to safeguard the sovereignty of Nation-States to exercise their already existing competence on public policy-making?

The reasons for a reaffirmation with regard to governments’ scope of influence is related to the context that gave rise to Internet governance as we see it today. Development of Internet standards and technical protocols began in the United States, a country which, from the end of the World War II, assumed center stage as regards international economics and politics. By the 1960’s the US had firmly understood the importance of technological development in terms of international power and prestige. TCP/IP and related standards came about as a result of an alliance between the high-level research capabilities of US universities and the strategic interests of US government agencies, who through DARPA and NSF financed the creation and early development of the Internet. The alliance would find further support in the commercial interest of US technology-based companies, who foresaw an opportunity to benefit from the innovative digital environment in terms of creating and expanding markets. By defining the main principles and norms of what would become the global Internet governance regime, the US, hegemonic since the end of the Cold War, aspired to create market opportunities for its companies. In a moment of unrivalled unipolarity, the US also reserved for itself the ultimate decision-making power over the Internet root, an asset that it has retained until today.

The prerogative of states to develop international public policy has remained unquestioned since the rise of the nation-state at the 17th century. The need to reaffirm it at a global UN summit is superfluous, unless the intention of that reaffirmation was to set the boundaries for government action within the newly formed Internet governance regime, by explicitly excluding governments from the technical management of the Internet, the development of standards and protocols, or “day-to-day technical and operational matters, that do not impact on international public policy issues.” The WSIS process with regard to the Internet is directly related to governments’ desire to assume a central role in Internet governance. With the excep- tion of the US Government, which has always been deeply involved in defining and guiding Internet governance schemes, the governments of the world were latecomers to this process.

The WSIS’ inclusion of the paragraph was thus not a reaffirmation of governments’ power to do what they have been doing for centuries, but rather recognition of the influence that non-state actors, “in their respec- tive roles”, have in the global Internet governance regime. It is this influence that gave rise to the possibility of multistakeholder arrangements, an idea that, since WSIS has been advocated by those involved in Internet governance, and that has created the scope for new players to interact on equal footing with states and intergovernmental organizations, i. e. the tradi- tional “actors” in international relations.

But coming back to the role of governments, it is worth mentioning that in 1995, when the debate sur- rounding Internet governance mechanisms started to gain momentum within the United States political scene, Robert Kahn wrote:

“A key to the success of the Internet is to insure that the interested parties have a fair and equitable way of participating in its evolution, including participation in its also-evolving standards process. A proper role for governments would be to oversee this process to make sure that it remains fair and meets the wide spectrum of public needs. (...) Governments must also take responsibility for helping to resolve problems that arise because of independent decisions made by multiple countries, for example in legal, security or regulatory matters.”

Among the “stakeholders” identified by WSIS, governments are perhaps the parties least able to take action in order to fulfil the mandates and expectations associated with the assumption as to “their respective roles”. By the time WSIS was called for by the United Nations, governments had started to realize the importance of the new interconnected global reality. Up until this time, governments from developing countries, in particular, had had little or no opportunity to contribute to the fledgling process of defining the contours of the Internet governance regime.

To date, with notable exceptions, governments continue to keep a low-profile when it comes to joining in existing Internet governance policy-making structures. Indeed many are somewhat reluctant to participate in relevant international-level discussions due to the lack of a proper coordination mechanism at the international level. But with the increasing use and dissemination of the Internet throughout the world, calls for the development of an appropriate coordination mechanism are growing stronger. The UN Inter- net Governance Forum (IGF) falls short of providing such a mechanism. During its first 5-year cycle, the IGF has been a locus for debate among all interested parties, characterized by a spirit of inclusion, transparency and openness. But it has not been able to provide a proper coordination mechanism with the potential to engage governments in defining public policies on Internet governance matters. One can argue that the IGF was never meant for such a role, and this is true. But the method by which the IGF was implemented and the lack of political will within the UN to take the initiative on the so-called “enhanced cooperation” process have clearly contributed to the underdevelopment of said process. This, in turn, is precisely why there is a lack of a scope “to enable governments, on equal footing, to carry out their roles and responsibilities in international public policy issues pertaining to the Internet (...)” (Tunis Agenda, para. 69). But the way the IGF has been implemented, together with the lack of political will within the UN to take initiative on the so-called “enhanced cooperation” process, clearly shows a void in the process, which is precisely the lack of a space “to enable governments, on equal footing, to carry out their roles and responsibilities in international public policy issues pertaining to the Internet (...)” (Tunis Agenda, para. 69).

In the absence of an appropriate environment for governments, a wide set of regulatory aspects continue to lack proper decision-making on a global level. Even worse, important matters continue to be dealt with by limited, selective, non-transparent and non-representative groups using issues-driven approaches, groups that implement the “minilateralist” way of conducting business, to use the expression used by Bertrand de La Chapelle.

Minilateralism poses the danger of promoting the values and interests of a specific sector able to mobi- lize a strong lobby within “like-minded” governments in order to obtain gains for its industries, irrespective of the legitimate views and aspirations of the greater public, who are totally excluded from the decision-making process. I refer, for example, to the Anti-Counterfeit Trade Agreement (ACTA), whose nego- tiators, behind closed doors, agreed on rules that, to be effective, must be observed at a global scale. Other non-global arrangements such as the Council of Europe and the OECD have also initiated processes with the aim of creating much needed rules to address issues of importance for Internet governance. The Budapest Convention is worth mentioning as another example of rule-making that, to be successful, requires global acceptance. However, without a rule-making process that is perceived by everyone as being truly open, transparent and inclusive, how are other, non- participating governments around the world supposed to accept being bound by such rules? What are the origins of the legitimacy of entities such as the Council of Europe or the OECD, and how does this entitle them to create rules for global application?

Many critics of strong government involvement in the global Internet governance regime argue that governments may seek to control the Internet or may cause damage to its essence. In their view, it should remain innovation-driven and open to creative collaboration, irrespective of national boundaries or any formal structure of centralized control. The example of ICANN is often cited as an outstanding example of private-sector led, multistakeholder collaboration which works well on a global scale. No one can disagree that, in the case of ICANN, legitimacy is achieved through the participation of all stakeholders in its meetings, discussions and decision-making processes. But ICANN could enjoy greater legitimacy and acceptance if it had the conditions to stand afoot by itself as a subject capable of contracting on an international level, a privileged reserved for states and international organizations according to the common understanding of Public International Law.

ICANN is but a tiny dot in the ocean of Internet governance issues that need to be addressed at the inter- national level. Pressing issues include combating cybercrime, protecting vital digital infrastructures, ensuring a balanced approach between intellectual property rights and the right of access to information, protecting consumer rights, promoting open data, observing an adequate balance between privacy and security, fostering cultural diversity and multilin- gualism, maintaining openness and promoting access and digital inclusion – all of which fall outside the official mandate of ICANN (notwithstanding its potential contribution to some of these issues through adequate policies for the management of the DNS and IP space).

The IGF, as mentioned, has been able to promote debate and improve awareness on these issues, but its ability to influence decision-makers in a coordinated manner (which would truly be a decision-shaping process) remains to be proved.

Revising the role of governments in Internet Gover- nance issues involves redefining the rules of engage- ment. These new rules would allow official govern- ment representatives to contribute to the emergence of a “distributed global governance framework”, within clear boundaries and, to use the words of La Chapelle, in their respective role, i.e. as global-level public policy-makers for Internet-related matters. Importantly, this role should not disrupt the globally-accepted principles for the governance and use of the Internet. Within a multistakeholder environment, all interested parties could contribute to setting the stage for further public policy elaboration. Such a sce- nario could pave the way for the transformation of Internet Governance into a truly global policy-making process. In order for that to happen, all we need is political will.