By Richard Hill

The United Nations Conference on Trade and Development Working Group on Enhanced Cooperation (WGEC) held what was supposed to be its last meeting in Geneva on 24-28 February.  However, as explained below, the group failed to agree certain key issues, so it agreed to meet again on 7-9 May.  Transcripts of the meeting will be published in due course on the meeting website.

The Tunis Agenda calls for enhanced cooperation to address issues related to the Internet and its governance.  However, there was no clear agreement on how to implement enhanced cooperation, so the WGEC group was convened to discuss that matter and to prepare recommendations. It should be noted that, according to the Tunis Agenda, the Internet Governance Forum (IGF) and “enhanced cooperation” were two distinct mechanisms.

Discussions in the WGEC were difficult, and it proved impossible to reach consensus on the key issues.

In essence, two views were expressed: (1) there have been, and continue to be, discussions of Internet governance matters in a number of forums, in particular the IGF; this constitutes “enhanced cooperation” and such discussions should continue so as to come to agreed solutions; (2) certain specific issues have not been satisfactorily resolved in the existing forums, so new mechanisms might be required, and in particular there is no mechanism by which governments can, “on an equal footing, carry out their roles and responsibilities, in 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” (para. 69 of the Tunis Agenda).

Proponents of the first view referred to the need to consult and involve all stakeholders in discussions of all Internet governance matters.  And some proponents expressed the view that all stakeholders should cooperate on an equal footing regarding Internet governance matters.  That is, governments should not have any special or privileged role.

It is the author’s view that this last proposal is not consistent with the principle that offline rights apply equally online, given that human rights include the right for everyone to take part, directly or through freely chosen representatives, in public policy decisions.  And this because representatives of some stakeholder categories are not freely chosen by all the people.

Proponents of the second view referred to para. 35(a) of the Tunis Agenda which states that “Policy authority for Internet-related public policy issues is the sovereign right of States. They have rights and responsibilities for international Internet-related public policy issues.”  They were of the view that there are no existing mechanisms that allow them effectively to carry out their public policy role at the international level.

In order to understand the debate, it is important to recall that certain specific issues, which had been discussed well before the World Summit on the Information Society (WSIS), were identified as issues requiring rapid resolution during the preparatory work for the Tunis phase of WSIS.  In particular, in para. 15-18 and 21-22 of the 2005 report of the Working Group on Internet Governance (WGIG).

These issues are: (1) issues related to the management of Internet domain names and addresses, in particular the asymmetric role of the US government; (2) the financial issues related to the increasing use of the Internet, in particular the relatively high cost of access by users in developing countries; (3) issues related to the relative lack of security of the Internet, including spam and lack of privacy.

These issues have been extensively discussed since 2005 in a number of forums, but, in the author’s opinion, it cannot be said that solutions have been agreed.  The US government retains its privileged role regarding the management of Internet domain names and addresses, and the current contract between the US government and IANA is more detailed and stringent than the original IANA contract.  In relative terms, the cost for developing-country users to access the Internet has not decreased, and the digital divide may well be increasing.  Spam continues to be an issue (in particular because ISP-level spam filters generate too many false positives and thus block some legitimate e-mails), security has not improved, and privacy has been reduced, in particular by the mass surveillance exercised by some governments.

Some participants in WGEC took the view that discussions to date have resulted in progress, and that increased engagement in the existing bodies, in particular the IGF, would lead to appropriate solutions to the issues.  These participants also took the view that increased governmental involvement, and in particular intergovernmental involvement, would not be helpful or appropriate, and indeed could have negative effects, for example stifling innovation or even freedom of expression.

Other participants took the view that discussions to date have not resulted in solutions to the problems identified in the preparatory process leading to the call for enhanced cooperation, so new mechanisms are required, such as a new intergovernmental agency, an increased role for ITU, a framework intergovernmental convention, etc.  According to these participants, existing bodies such as the IGF are not suitable because they do not recognize the specific public policy-making responsibility of governments.

These are clearly diametrically opposed views and it proved impossible to reconcile them.

However, some recommendations were agreed and it was agreed to meet again to attempt to find further consensus text. The agreed recommendations essentially encourage all stakeholders to continue to discuss the issues and to encourage participation in the discussions, in particular by developing countries.  Some participants felt that the discussions at the forthcoming NetMundial meeting in Brazil, and in the UN regarding a possible WSIS+15 review, might have an impact on the future discussions in WGEC.

Differing views were expressed regarding whether the text agreed to date was definitely agreed (subject to editorial refinement) or whether “nothing is agreed until everything is agreed”.

In the author’s opinion, the discussions were difficult because a step was omitted, namely an analysis of the causes which have prevented solutions from being found.  This step was omitted because the WGEC works by consensus and there was no consensus to the effect that there are issues that are not being solved by the existing mechanisms.

If this analysis had been undertaken then, in the author’s opinion, it would have been seen that the lack of progress with respect to the role of the US government in the management of domain names and addresses is due to the reluctance of the US to envisage any real change to its current role, which reluctance is of course understandable from the US point of view (and the point of view of others).  The lack of progress with respect to the financial issues is due to the reluctance of commercial operators in the developed and developing world, and regulated or state-owned operators in the developing world, to accept changes that could result in reduced revenues, which reluctance is again understandable.  The lack of progress with respect to security is due to a lack of agreement on how to address the issue, in particular what sorts of international cooperation are most appropriate (see IP-Watch interview with the author regarding the new International Telecommunication Regulations), and, perhaps, concerns that improved security might make mass surveillance more difficult.

In the author’s opinion, no real progress will be made unless both camps decide that it is time to abandon long-entrenched positions and negotiate in good faith to find a middle ground.  And this will no doubt happen at some point, because nobody really wants to see a fragmented Internet, which might be the outcome if the stalemate continues.

Richard Hill, an independent consultant in Geneva who was formerly a senior staff member at the UN International Telecommunication Union (ITU), recently published, “The New International Telecommunication Regulations and the Internet: A Commentary and Legislative History.”