Multistakeholderism: Internal Limitations and External Limits

MIND #2
Internet Policy Making
Inhaltsverzeichnis
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Responses - Stakeholder Technical & Academic Community

William Drake, University of Zurich

Abstract
It is important to avoid letting enthusiasm cloud our vision and overestimating the significance of what has been achieved. A substantial chunk of the actual decision-making that shapes the Internet remains outside the ambit of the model of multistakeholderism.

Multistakeholderism: Internet Limitations and External Limits

There is no question that the growth and institutionalization of multistakeholderism has been one of the most significant phenomena in global Internet governance. Among other benefits, it has created a sense of ownership and buy-in among the non-state agents that develop and use the Internet, it has promoted collective learning and capacity building around the world, and it has resulted in better and more sustainable governance frameworks for critical Internet resources than anything purely intergovernmental cooperation could have produced. The stakeholders who have been in the trenches arguing for multistakeholderism naturally feel committed to its further elaboration and defense against critics in government and beyond.

At the same time though, it is important to avoid letting enthusiasm cloud our vision and overestimating the significance of what has been achieved. On the one hand, there are more than a few “bugs in the system” that would require a good deal of work to correct, and the prospects for that happening are unclear. On the other hand, there is no evidence of any movement toward a generalization of multistakeholderism beyond the institutional environments within which it already exists. Indeed, a substantial chunk of the actual decision-making that shapes the Internet and its use at both the national and global levels remains outside the ambit of the model of multistakeholderism that is summarized interestingly by Bertrand de La Chapelle in this issue. As such, that model is best conceived of as a critically important component of the distributed institutional architecture of Internet governance, rather than as the embodiment of a “paradigm shift,” at least in the sense in which that term is conventionally understood in the natural and social sciences.

Below I will briefly expand on these two points – the internal limitations of the model as it has been operationalized in the Internet Governance Forum (IGF) and the Internet Corporation for Assigned Names and Numbers (ICANN), and the external limits of its reach across the realm of Internet governance.

Internet Limitations

Advocating and participating in multistakeholder processes requires some comfort with liminality, and perhaps even schizophrenia. One becomes abundantly aware of their shortcomings, the gaps between rhetoric and reality, and the difficulty of achieving consensus on substantial improvements. In the IGF, under-institutionalization leads to bouts of procedural “ad hocery”, and participants remain deeply divided over whether anything beyond an annual conference of undirected dialog is desirable and feasible. In ICANN, people spend an inordinate amount of their time and energy engaged in heated battles over all matters large and small, and are condemned to seemingly endless cycles of collective navel gazing and organizational reform. Nevertheless, they remain mindful that, to paraphrase Winston Churchill, multistakeholderism is the worst form of Internet governance, except for all the others. So despite any frustrations they may have, they are compelled to defend these processes from attacks by some governments, international organization secretariats, and other nonparticipants.

As a sufferer of this particular affliction, I would be hesitant to provide ammunition for any such attacks. Luckily enough, most of the problems encountered by multistakeholder practices have been widely debated already, so raising them in order to caution against irrational exuberance should be anodyne enough. Five in particular merit mention here.

First, the scope of stakeholder participation remains too narrow. While there has been much debate in recent years about the “democratic deficit” in multilateral institutions, multistakeholderism unquestionably faces its own challenges with respect to participation and accountability. Many of us make jokes about the “traveling circus” of “usual suspects” flying around the world to meetings, or some similar formulation, but the awkward humor reflects an awareness of the implications. The on-site presence of only those who have the financial support, expertise, and interest required raises normative and operational issues that cannot be offset fully by even the excellent remote participation facilitation in the IGF and ICANN. It goes without saying that the overwhelming majority of the world’s two billion users remain uninvolved, as do the many more non-users who may be affected by patterns of Internet usage in the political, economic, and social spheres. But participation is also very limited among those who one might have expected and hoped to engage, e. g. technology entrepreneurs, small and medium sized businesses, civil society advocacy or service provision organizations, and so on. While these problems are common to most global governance arrangements, and the IGF and ICANN have worked to promote outreach within their respective constraints, inadequate participation does impact on both the character of debate and the external acceptance of the processes.

Second, the problem of participation is especially acute in relation to the developing world. With respect to governments, there is an unfortunate tendency among some stakeholders and observers to view them all as comprising a singular anti-multistakeholder, pro-intergovernmental camp. And to be fair, this could be an easy mistake to make if one were to focus only on the official positions and leadership statements of the Group of 77 and China. But in other contexts it is clear that there are a wide variety of interests and positions in play. To simplify radically: one group of governments does participate in and support the IGF and ICANN to varying degrees, but would prefer institutional reforms that would enhance their influence. Another group of governments, which includes those of many least developed countries, simply does not place global Internet governance high on their list of competing priorities, and/or lacks the wherewithal to participate. And a third group simply refuses on political grounds to participate and then criticizes the IGF and ICANN as illegitimate because they do not participate. Proponents of multistake- holderism need to differentiate between these groups and to define outreach strategies that are suited to each case. Some steps have been taken along this path, but not enough.

It may be even more important to work with and support nongovernmental stakeholders in the developing world. By themselves, the urgings of agents from the industrialized world seem unlikely to change hearts and minds and entice many developing country governments to embrace policy spaces they maintain are stacked against them. It could be a different matter if their own national business, technical, and civil society communities were more robust and ready to engage in a manner that reduced perceived and real asymmetries. Of course, some governments, or at least their diplomatic representatives, may not want to see the emergence of vital non-state sectors that could have independent preferences and challenge their monopoly control over international policy engagements. Whether this requires outreach strategies that are qualitatively or just quantitatively different is an open question.

Third, there is a need to reduce the often yawning gap between nominal and effective participation. For newbies of all sorts and many developing country agents in particular, showing up can mean being greeted by unfamiliar and unfathomable agendas, procedures, and dynamics. A conducive environment is needed if people are to move up the learning curve, make their voices heard, and see that their views have been taken into account, even if they have not prevailed. Linguistic barriers have been a frequently cited problem and in consequence translation services have become more common, but language-related differences in cultural outlook and style of interaction remain an issue. ICANN in particular has a rather conflictual organizational culture in which one must prove oneself through a history of quality interventions in order to be taken seriously. Challenging peer- to-peer dialogs can present difficulties for people accustomed to enjoying a certain status and respect based on their positions, home organizations, or geopolitical sensibilities. Often, face-to-face meetings are simply moments in long-running and complex processes that have evolved in multiple online and offline settings. This can make it difficult for a “newbie” of any sort, and especially one from a different background, to just jump in at point T-20 and figure everything out. And the background information and documentation needed to engage fully is often presented in a manner that can seem opaque and disem-powering in comparison to what one receives for an intergovernmental meeting. In short, as long as there is a lack of more effective measures to facilitate new attendees’ movement into the stream, the nominal outreach objective of holding meetings around the world will remain insufficiently realized. Fourth, as in many intergovernmental or private sector policy spaces, multistakeholder processes are inevitably configured by asymmetries among agents in terms of wealth, power, access to information, connections, and influence. Charges of organizational capture by dark forces are a leitmotif of many global policy discussions, but multistakeholder processes seem unique in the extent to which seemingly everyone believes (or at least publicly professes) that they are the victim rather than the victor in this. It is unclear whether that is a sign of organizational sickness or health. In any event, they say where you stand is where you sit, and as one who sits primarily with civil society, I could argue at some length that in any realistic portrayal we and the values we promote usually come out at the bottom of the influence hierarchy.

What is needed are institutional rules and procedures that ensure that all views get a full and fair hearing, and that decisions favoring one set of interests over another are transparently made, explained, and open to some measure of review. One might add that these concerns may apply not only to relations among governments and stakeholders, but also within the stakeholder groups themselves. As in the wider environment, some groups may at times be characterized by inadequate “inreach,” or their internal levels of democratic engagement, transparency, and accountability. Here too there may be varying degrees of division into insiders and outsiders, either as an unintended and undesired consequence of differential capacities, or as a strategic choice by agents with private agendas, insufficient trust of their peers and open processes, or simply a firm conviction that they know best. This is an awkward matter that is rarely discussed openly, but it can happen, and it matters.

Finally, a fifth limitation concerns the governments that routinely profess to be the ardent champions of multistakeholderism. While the industrialized democracies’ professed support has been vitally important in fending off ill-conceived intergovernmental gambits, they have often proved reluctant to “put their money where their mouth is,” financially and/or politically. In the case of the IGF, the lack of financial contributions from all but a few governments for necessary secretariat functions and travel support clearly has hampered the process. So has the lack of political support for reasonable enhancements that would allow the IGF to become a more vital and important process capable of attracting broader participation (which need not entail the painstaking negotiation of recommendations). This has helped to leave us with just an entertaining annual meeting that is unable to make concrete contributions to Internet governance and increased global buy-in thereto.

In ICANN the problems are solely political. Here we have bottom-up community policy development processes resulting in actual governance decisions, but the key governments say they cannot participate in these and can only issue 11th hour advice/instructions to the Board of Directors, usually to stop what everyone has been working on for years until governments can think about it and be lobbied more by trademark interests and law enforcement. When that did not prove sufficient with regard to the new gTLD program, we received transatlantic communications urging the US government to abuse its contractual relations and bring ICANN to heel, and a hastily arranged February 2011 summit in Brussels to negotiate over a “scorecard” of Government Advisory Committee demands. When all this failed to satisfy, we got strident 12th hour objections and warnings from governments not to proceed at the June 2011 Singapore ICANN meeting, where the Board nevertheless went ahead and approved the program. And all of this has been unfolding against the backdrop of various illconceived and dangerous proposals in the US Congress to abuse US legal control over key parts of the domain name industry in the service of intellectual property interests, and threats of lawsuits by the same interests against ICANN. All of which makes one wonder whether the governmental commitment to multistakeholderism comes with a caveat, namely “as long as you do what we want.”

External Limits

In parallel, the governments that extol the wonders of multistakeholderism a la the IGF and ICANN have shown rather limited desire to extend it to other realms of Internet governance. At the national level, Internet governance policies are typically worked out through traditional executive, legislative, judicial, and regulatory processes in which stakeholders may at times provide inputs to government decision-makers via various channels (or in nondemocratic regimes, through state diktats). Not much peer-based, bottom-up, “Type 4” decision making there. Moreover, it should be recalled that in some cases, nominally national policies serve as de facto global governance mechanisms that unilaterally project ordering beyond borders.

At the international level, there has been one very positive development. In light of the dialogs in the World Summit on the Information Society and the IGF, the Organization for Economic Cooperation and Development (OECD) decided in 2008 to open its Internet-related meetings to the technical community and civil society, both of which now participate in parallel with the longstanding business representatives and are making significant contributions. This “Type 2” participation is probably as much as one can hope for in an intergovernmental setting, but it does have its limitations. For example, when civil society representatives declined to endorse a communiqué on Internet policy-making principles that was agreed at a June 2011 OECD meeting, subsequent government statements praised the document and its multistakeholder support without noting this little detail.

Aside from the OECD, there are no signs of movement toward increased multistakeholderism of any sort in other relevant intergovernmental organizations. This is true whether one looks at the World Intellectual Property Organization; the World Trade Organization; the United Nations Economic, Social and Cultural Organization; the United Nations Conference on International Trade Law; the European Union; the Group of 7/8; or any of the other bodies that have or claim to have a role in Internet governance. Some have long-standing “Type 2” provisions for the participation of business or civil society (usually not both), and the Council of Europe has launched some open projects and meetings and has been vocally supportive of the IGF, but there is no general trend toward a broadening or deepening of multistakeholder participation.

A particularly notable example in this regard concerns the ITU, which inter alia has a purely intergovernmental Dedicated Group on International Internet-Related Public Policy Issues. During 2007–2009, the ITU Council’s Working Group on Participation of Stakeholders in ITU Activities undertook an assessment in accordance with a 2006 Plenipotentiary Conference Resolution. The question of whether to allow the participation of civil society and other uninvolved agents gave rise to almost otherworldly debates in which member governments listed a range of reasons why multistakeholderism would disrupt the organization’s work, be of little value, impose unbearable financial burdens, and so on. As such, it was decided that the existing framework for becoming a (normal, paying) Sector Member or Associate – which has resulted in almost zero civil society participation – would be sufficient. Argentina and Switzerland put forth constructive proposals, but otherwise there was rather little support for opening the organization up, including from the most vocal governmental proponents of multistakeholderism in the IGF and ICANN.

Similarly, there are no signs of movement toward increased multistakeholderism in private sector global Internet governance mechanisms. Industry associations that negotiate shared rules of the game for issues like standards, security, electronic commerce, data protection and so on are not being encouraged to open their doors to other stakeholders, nor are they putting out the welcome mat of their own volition. Neither are those individual firms that have monopoly or oligopoly market power, which allows them to effectively establish global ordering through their strategic practices, codes, and so on.

In short, there is no discernable pattern emerging of a generalized shift toward multistakeholderism beyond those processes in which it already exists. The sort of strong, “Type 4” multistakeholderism discussed in this issue seems to exist only in those organizations or processes that are indigenous to the Internet environment, such as ICANN, the Internet Engineering Task Force, and the Regional Internet Registries. So while the policy problems we face may be post-Westphalian in character, much of the organizational apparatus for managing them is not. If that can change, or if we can grow an ecosystem of new, innovative, open, and accountable institutional arrangements, then we will indeed be able to speak of a political paradigm shift.