Multistakeholderism needs fundamental and decisive legitimation
Multistakeholderism needs fundamental and decisive legitimation
Responses - Stakeholder Government & Parliament
Catherine Trautmann, Member of the European Parliament
Abstract
Our duty is to make sure that the multi-stakeholder system works for the global community. If we don't want a repetition of Galileo's fate (condemnation and abjuration), we need to demonstrate that this new political paradigm is the only one truly fit for the issues at stake.
Inhaltsverzeichnis |
Multistakeholderism Needs Fundamental and Decisive Legitimation
Introduction
he world has been undergoing its deepest economic and financial crisis since 1929. Some blame this crisis, with some merit, on public policy-makers’ desertion from this field, which resulted in the “hijacking” of the whole system to the detriment of the public at large. Among the reasons put forward to explain this withdrawal is the claim that the field is “too complex, with implications which escape the classic national jurisdictions”. But doesn’t this statement strangely echo what is also said about the Internet?
In this discussion paper, I will certainly not be advo- cating that public policy-makers should take control over the Internet (much in the same way that I, while believing that public authorities need to regain their part in the global management of world finance, wouldn’t call for an “administered economy”). However, because of its “systemic” importance and “public serv- ice value” (the latter as coined by the Council of Europe), our duty is to make sure that the system as a whole works for the global community: that is to say that we oppose both the balkanisation and the monopolisation of the Internet. For that, we need to make sure that the rules which underpin such a system, and the processes which shape them, are as legitimate as possible. Fortunately, unlike the world of finance where calls for a “global governance” seem a far cry from where we currently stand, the Internet governance debate and practice are alive and kicking, as Bertrand’s paper demonstrates.
Yet, while his account of the multistakeholder approach is precise and his opinion on the matter jus- tifiably upbeat, I felt that, somehow, it remained a bit “traditional” in its mapping and conclusion. Indeed, as someone who’s been part of this adventure from the start, I recently perceived a sort of embarrassment as the exposed limitations start to materialise. I don’t believe that the only pitfalls of the multistakeholder approach lie in its implementation (as significant as this may be). Let us not make the mistake which was committed in the IPR debate, which for more than 10 years now, has been focussing on enforcement only, with few significant results. A different approach could have come up with real answers in terms of an ambitious (and, at the same time, perilous) review of the debate’s substance itself. In short, maybe the very concept needs to be “re-booted” if we want it to really represent this “innovative political paradigm”.
Indeed, we are currently standing at a crossroads: while until now, most stakeholders shared a more or less similar view on many core issues, this is becoming less and less the case, as is shown by the very bitter dissents on Net neutrality and IPR protection, or by the recent difficulties between the ICANN Board and the GAC with regard to the new TLDs. This situation calls for a re-examination of the very nature of the Internet, what to expect from it, and what type of governance to imagine; more importantly even, in order to remain significant, the whole process needs legitimacy and this cannot only be gained “a posteriori” (3.8). Effective multistakeholderism will at some point demand, if not an a priori legitimacy (it’s a bit too late for that), at least legitimacy of a fundamental nature.
Sedimentation of Internet Definitions
If we are to explore the legitimation paths of Internet governance processes, and in particular those of the multistakeholder approach, we first need to take another look at the Internet itself. Indeed, the criteria that dictate how its governance should be understood have to primarily take into account the way people define and experience the Internet. Bertrand himself uses several expressions to define the Internet: “cyberspace”, “common social place”, “platform”, “digital territories”... And Sir Tim Berners-Lee repeatedly calls for an incremental effort in terms of understanding of the Web (already in 2006, he said to the BBC that “If we don’t have the ability to understand the web as it’s now emerging, we will end up with things that are very bad.” “Web science” is a way of introducing our- selves to a multifaceted Internet. We will indeed see that there are several definition layers which as they pile up, draw an increasingly rich and complex picture, with consequences on Internet governance.
Technical Definition
The Internet is technically defined as a global system of interconnected computers and computer networks using TCP/IP. For this reason it is open, interoperable and non-discriminatory. The Internet relies on two main namespaces: domain names and IP addresses.
Practical Definition
Yet the Internet is maybe better defined by its users’ practices and expectations. In that sense, directly deriving from its technical setting, it is used to receive and distribute information, content and applications of the user’s choice, without any interference. The free flow of information is indeed an essential component of the “Internet way of life”, even if that flow runs up against “obstacles”, such as state confidentiality or IPR. With regard to the former, while maybe not whole- heartedly supportive of Julian Assange’s methods, it is fair to say that the additional transparency that the Internet brings with respect to political decisions is a definite improvement. In fact, rather than “leaks”, a lot of this information should come directly from the public authorities themselves (this is the point of the “open data” movement). From that perspective, I share Bertrand’s opinion on the fact that more should be done to make representative systems and diplomatic negotiations more transparent to the public (perhaps his opinion stems from personal experience? (1.9), I do, however, notice that things are already changing in the policy-making sphere (e.g., the debate around ACTA). Regarding the latter, I tend to consider favourably the fact that more people can share cultural content as freely as possible. Obviously, however, and despite recent improvements, there is still a delicate economic issue in terms of fair compensation for the artists; but there are also sound proposals being put forward (such as the global license), which could reconcile sharing data and rewarding the creators.
Political Definition
Is the Internet a democracy, a res publica, an oligarchy, an enlightened despotism (Bertrand’s “benevolent ruler[s]” in 1.7), or rather a sort of dictatorship (of the masses)? What is Internet’s “social embodiment”? Should we speak of Internet “users” or Internet “citizens”, and in the latter case, does the term “Netizens” really reflect something tangible? In the beginning, the debate surrounding multistake- holderism was focused on and fed by the two previous definitions or approaches, and there was no major dissent on which way to go. Multistakeholderism as practised currently is a product of that (ICANN as a “first age” multistakeholder process dedicated to the more technical approach, IGF more adapted to a “second age”, usage-focused Internet). But things are now changing: serious debates are being conducted about where to place the cursor between security and privacy or freedom of expression; between innovation without permission and monetisation of traffic. More and more, the Internet governance debate seems to be giving rise to “traditional” patterns as regards progressive vs. conservative policies (think of the political polarisation regarding Net neutrality, IPR protection, or “subversive” uses of the Internet ...).
Should we consider this trend a step backwards, away from the cosy, consensual compromise-shaping pro- cesses which we have seen up to now in such fora? I prefer to see it as a potential improvement, a way to enlarge the circle, testing the multistakeholder method and ultimately legitimising the governance processes. While I found Bertrand’s criticism of representative electoral systems a bit excessive because it doesn’t take into account its many flavours (only the “first-past-the-post” method really eliminates diversity and minority voices), he is entirely correct when he writes that the “multistakeholder approach rests on a fundamental principle: the right of any person to participate in governance processes dealing with issues of interest or concern to them”: this is what the Internet needs in terms of governance.
That’s why sound solutions cannot merely take the shape of a political debate limited within nation-states, or even once conducted between nation-states (as we know, such solutions are pushed by those coun- tries, usually not the most democratic, which would like to revert to classic intergovernmental policy-making). Since, as we’ve seen, the Internet is distributed, we need a process which reflects this nature and thus combines different sources of legitimacy. Even in the world of Westphalian (or post-Westphalian) relations, there are examples of “distributed” sources of legitimacy weaving in a single process which can even be binding. I am quite familiar with one of these: the European Union. Here, the institutions that form the famous decisional triangle each represent one interest: the EU itself as a regional organisation on the global scene (Commission); the citizens of the Union (European Parliament); and the member states which compose the Union (Council). This institutional set-up is allowed by gradual transfers of sovereignty, “compensated” by the principle of subsidiarity. The European Parliament alone is an interesting case-study in terms of compromise-shaping and going beyond the sole national interests. But as an MEP I know full well the difficulty of properly upholding such an approach, against the trend of pure intergovernmentalism.
From another, more individual perspective, there are also examples of participatory, “direct democracy” processes. These usually take place on the basis of relatively small groups. But the Internet itself can greatly facilitate and allow such participatory processes on a greater scale.
So the challenge in terms of consummating the innovative political paradigm is to develop a process that is open, participatory and multistakeholder, but with enough legitimacy to tackle and have a real impact on the core political debate concerning the Internet (possibly to the point of decision-making). Otherwise, it will unfortunately continue to be largely ignored or bypassed.
Shifting Global / Local Dynamics, Legitimation and the Role of Multistakeholderism
Global (Borderless) Vs. National/Regional (Bordered); Norm & Jurisdiction: Several Combinations
One of the central points of Bertrand’s paper is the difficulty of going beyond the antagonism that exists between “Westphalian” diplomacy and global, dis- tributed networks. This tension between “virtual geography” and “physical borders” is indeed likely to grow (1.4). In fact, we can already see this in cloud computing, where most governments’ strategies (for those who have one) tend to stick to the physical border logic (building up “national” cloud computing capacity in order to push national users to use these, hopefully minimising the risk of conflicts of norm or jurisdiction).
As a side note, in the physical world also, there are areas where no single state has jurisdiction. Such areas include international waters, where ships are under the sole jurisdiction of their flag state, except in certain circumstances. So another dimension of the ten- sion between physical and virtual territories, and in fact a way to circumvent it, would be to ask whether the norms which apply on the Internet are really attached to a “territory” (even virtual) or rather to individuals. Maybe this way of thinking could be explored more deeply (taking stock of the consider- ations regarding the Law of the Sea, where debates about governance over international waters seem similarly lively).
But to return to the approach developed in Bertrand’s paper: when we speak about such conflicts (1.5), is it about the norm itself (and who defines it) or is it about the jurisdiction (within which remit the norm can be applied? Which authority has the power to implement and/or enforce?)? Let us take a closer look at some combinations:
— Single global norm with global enforcement. Here, two examples come to mind. One is Facebook’s ToS (which, as Bertrand accurately described, is a “fait accompli” as a result of to the social networks’ success). Another example is everything within the remit of ICANN, i.e. the overarching day-to-day management of the Domain name and IP systems. Yet such decisions, reached through a sort of multistakeholder pro- cess, are deemed “only technical” (and the distri- bution through registries and registrars of sub- levels of management makes the enforcement not-so-global).
— National norms with national enforcement(s): criminal and most civil infringements fall into this category.
— National norm with global enforcement: a prime example is the currently on hold US “Protect IP Act” (PIPA), which would allow American authorities disrupt, at the DNS level, any website allegedly illegal under US law, regardless of where it is hosted or by whom it is managed. This is noth- ing less than digital imperialism.
— Single global norm with national enforcement(s): there’s no clear example of such a combination. Yet, couldn’t this be one of the missing pieces of the Internet governance puzzle? A single global norm encasing the core principles of the Internet, established through a clear-policy making process which would then be implemented and enforced under local jurisdiction (allowing easy access to judicial or para-judicial remedies if necessary). How, though, could such a combination be defined? The Council of Europe, which already attempted conventional law-making (Convention on Cybercrime, 31 ratifications), recently held a conference entitled “Internet freedom: from principles to global treaty law?”, which ended up with a draft recommendation (in which Bertrand was involved). The aim of such a recommendation seems to be the type of global norm that comes about through classic intergovernmental negotiation. But, as we are reminded, such attempts risk ending up as “minilateralism” (1.10). On the other hand, the challenge of developing such global norms seems a great opportunity in terms of test- ing the potential of innovative multistakeholder processes.
Legitimacy Issues
Multistakeholder processes as a way to shape basic global Internet norms (which would be neither impe- rialistic nor a “fait accompli”), need far more than just a link with their respective “initial legitimising authorities” (2.8) in order to achieve legitimacy.
Taking the example of ICANN, we are told that “its capacity to force contracted parties to respect future consensus policies is what makes them participate in the policy development process” (3.1). It is also claimed that states enjoy more than a simple “advisory” capacity through the GAC (although many would challenge this interpretation) (2.3).
Thus, if ICANN were to one day break free from any kind of tutelage (as foreseen in 2.8), its source of legitimacy would be the fact that, as regards the critically important yet clearly limited areas for which it is responsible, it enjoys a monopoly on enforcement. This, in turn, requires an open, transparent, multistakeholder process in order to design its policies. In fact, the reason why ICANN debates became more “political”, and the sudden rediscovery by states of their potential influence through the GAC, is for me linked to the failure of the second leg of the Tunis Agenda: enhanced cooperation. Indeed, state actors, by massively ignoring or withdrawing from the measures necessary for fulfilment of the Tunis Agenda, created both an imbalance in the IGF debates and a disturbance in the ICANN sphere when they sud- denly (though understandably) tried to regain their influence. Arguably, ICANN has the competence to design the best system for extending the DNS with- out breaking the Internet, but perhaps not the exper- tise necessary for assessing the opportunities that such extensions give rise to in principle. In short: states were mostly absent from the most political mul- tistakeholder process (IGF) but introduced politics in a theoretically technical arena (which might have stepped in a gray area).
Now, in order to prevent a vacuum, might a more political multistakeholder process legitimise the development of a single, global, Internet norm? That is to say, a norm encompassing issues at least as important as the ones ICANN deals with but with a much wider scope (possibly at the expense of the enforce- ment monopoly)?
An Array of Practical and More Fundamental Proposals to Move Multistakeholderism Forward
I fully agree with Bertrand when he writes that all types of implementation pitfalls and limitations need to be fixed “before they are exploited to discredit this innovation” (3). All his developments on these issues are very relevant and most of them don’t necessarily require a lot of political leverage to be solved. But in particular, I’d like to insist on a few points:
— Beware of the comforting centripetal movement: time and/or budget constraints could lead, in the long run, lead to MAG meetings being attended only by “usual suspects” (2.7 & 3.1). There is always the need for better promotion of meetings such as the MAG or even the IGF, as well as for being creative in finding budgetary solutions in order to bring about increases in participation. In its Resolution on “Internet governance: the next steps”, the European Parliament, perhaps candidly and certainly provocatively, proposed to devolve a modest share of ICANN’s treasury to sponsoring the participation of under-represented stakeholders. Another perhaps more practicable approach would be to redistribute a part of the registries’ levy on some large TLDs. (e. g., the International Foundation For Online Responsibility is funded through a stipend of 10 $/year for each registered .xxx address).
— Due to the fact that the debates are likely to become more contentious, their synthesis will be increasingly difficult to draft (3.3). As a longstanding member of a political party in which, although people share a lot of common views, I witnessed a lot of very tense situations (especially when the stakes are high), I would recommend option for one of the following two approaches: either you stick to a very descriptive account (at the expense of succinctness and problematisation), or you designate the task of following up on the drafting (the Secretariat remaining supreme) to representatives of the conflicting points of view.
— Reviews (2.9): while I share the feeling that cer- tain reviews didn’t go exactly as expected (in par- ticular, the one on the IGF), I wouldn’t say that they did not work at all. All in all, it proved to be a somewhat surprising yet useful exercise to better understand where certain states stood. And such reviews are of overall value in terms of the wake- up call that they provide.
Again, to me, such fine-tuning (and the other ones mentioned in part 3 of the paper) can only be a step- ping stone leading to something higher.
A step further would be to better connect multistake- holder fora with more traditional decision-making bodies (may it be parliament, government, or even the board of an ICT company): the latters’ task would be to implement the principles crafted in the former (something which would rely not only on pristine synthesis as evoked above, but most importantly on political will from the participants to actually take account of such principles in the decision-making activities.
And while this may come across as oxymoronic, the question should also be asked of an ultimately decision- making (or decision-shaping) multistakeholder process in order to establish a single, common layer of basic norms or principles relating to the Internet.
Conclusion
In order to solve global issues, increasing numbers of people from a variety of different regions are calling for global governance mechanisms. Indeed, purely diplomatic ways, which rely on state sovereignty and interstate cooperation, often lack openness and public scrutiny. The traditional, democratic legiti- macy enjoyed by elected governments and parliamen- tarians is diluted by deliberations behind closed doors and the regular absence of political representation.
On the other hand, there are justified concerns that private interests alone cannot rule in the long run, even checked by a strong civil society. Genuine global governance needs a legitimacy of its own, and in which public authorities have a role to play.
In this context, is multistakeholderism as we currently know and practice it, high-level fine-tuning of an evolving diplomacy, or rather the beginning of something entirely new? Bertrand’s paper, by comparing it to the Copernican system (hence opposed to the old, geocentric ones), seems to adopt the second opinion, and I tend to agree with him.
Of course, there is resistance from established players: not only on the part of those actors who oppose multistakeholderism as a matter of principle, but also from all those who disregard or ignore it. The latter is of more concern to me. Is their disregard because the multistakeholder approach is too innovative to them, or still not enough?
As I attempted to develop in this short paper, I see a gradation of scenarios, once the obvious and well identified improvements are applied:
— To keep multistakeholder processes non-binding or to strictly limit their areas of competence to technical issues. As it stands, this would probably be the logical evolution, but it might create frustration and demobilisation in the long run, while increasing difficulties in the gray zone between technical and political policy-making.
— To develop the links with the decision-making bodies; but if the points made are not properly synthesised, or if they lack credibility, they will not be followed-up in a satisfactory way, or maybe even not at all.
— To use these processes in order to develop a single set of basic norms or principles, to be imple- mented and enforced in a non-centralised way. In acting accordingly, public and private players alike would serve their own interests, provided that the process doesn’t deprive them of their own competence to some extent (the cursor of subsidiary) and allows individuals to feel both empowered and properly protected by the enacted norms and principles.
In conclusion, and referring back to the initial simile: if we don’t want a repetition of Galileo’s fate (condemnation and abjuration), we need something that even Galileo was not able to produce in support of his discoveries: a decisive, fundamental demonstration that this new political paradigm is the only model truly suitable for the issues at stake. Internet governance cannot wait for some posterior justification another century down the road.
