Internet Governance Forum: Embarking On Post-IANA Transition And Taking On Trade

The first edition of the renewed Internet Governance Forum (IGF) last week tried its all not to become just another internet governance conference, with new formats and the taking on of one big topic that so far had evaded the “multi-stakeholder” approach: trade negotiations. But it also angered some by making its big dinner an invitation-only event, for governments and friends.

With several big trade negotiation projects in disarray after the election of Donald Trump in the United States, trade critics gathered at the 11th Internet Governance Forum – the longstanding UN-affiliated gathering – in Guadalajara, Mexico. They sensed an opportunity for some frank talk on the attempts to include the internet in e-commerce and telecom chapters.

“Trade is going to be one of the central aspects of internet governance,” after the transition of the internet root zone and IANA was accomplished, Georgia Institute of Technology (US) Professor Milton Mueller said on one of several panels on the issue.

“Copyright and data protection are meanwhile all covered by the trade agreements,” observed Berlin Social Scientist Jeanette Hofmann, Wissenschaftszentrum Berlin, adding, “Trade certainly had to end up on the agenda, as the IGF is one place where you finally get an opportunity to ask governments about their trade agendas and also criticize them.”

Talking to Trade Negotiators

Trade negotiators from Chile and Mexico took the stand in an IGF trade plenary meeting and tried to make the case of how the big agreements including the Trans-Pacific Partnership (TPP) and the Trade in Services Agreement (TISA) would benefit their countries.

Welcoming the open exchange and also the call for more openness in trade negotiations expressed in the Brussels Declaration [pdf] of 19 civil society organisations. Marcella Paiva Veliz, TPP trade negotiator for Chile, warned against “this absolute rhetoric about being bad or closed or evil. It is not the best way to approach the negotiators,” she said, and pointed to efforts in Chile to address requests for consultations with the opening of “side rooms”. Chile organized 54 consultation meetings with around 100 organisations in the TPP side rooms, she said. Similar efforts were underway for TISA, she said.

At the same time, she tried to promote a more positive understanding of what trade means for a country like Chile. Trade makes up a big portion of Chile’s GDP. “For us, saying that free trade agreements are a failure or not working is really not like an accurate picture,” she said, also rejecting fears about a heightened e-commerce agenda at the World Trade Organization.

It is true, Veliz said, that there was a reluctance to get into the e-commerce or digital trade negotiations at the WTO “because a lot of countries want to first finalise agriculture and other issues.” But bringing the issue back into the multilateral arena makes sense to her. “In the end, all our countries are involved in digital trade,” she said, and even called on civil society to promote multilateral talks.

NGO experts, on the other hand, warned against that push, saying it would serve only companies from IT-developed western markets. Developing countries have not figured out their digital trade agendas yet and need flexibility to build their infrastructures, warned Burcu Kilic, trade expert for Public Citizen in Washington, DC. “Ten years ago, we didn’t have Uber. We didn’t have Airbnb,” she warned.

Deborah James of the Center of Economic and Policy Research (CEPR) said the US is “shopping their proposals on e-commerce in multiple venues,” not only the trade negotiations, but also the G7, G20 and OECD. The US is promoting points like protecting source code, prohibiting mandates for supporting local technologies and customs duties, she said.

Plans for an e-commerce treaty of the WTO are expected to be decided upon by the ministerial next year in Argentina, but NGOs argue this would be premature, James and Kilic said.

IP-Maximalism Called Out

An even sharper controversy erupted during a panel on TPP over the question of whether intellectual property is a mere trade issue and therefore extensions of copyright protections natural part of the trade agreements. The extensions of copyright terms from 50 to 70 years after the author’s death will still have to be implemented in the TPP parties, even if the US withdraws from the treaty.

Talking about how Mexico pursued the protection of IP in the TPP, Juan Antonio Dorantes Sanchez, lawyer and former TPP negotiator, defended the TPP as being “an example of a balanced result on IP.” Comparing TPP to NAFTA (the North American Free Trade Agreement), Dorantes said, “you will see that on the user side on the promotion of culture or the exchange of information of the public domain the TPP contains better and actually stronger provisions that those that we negotiated back in the nineties in NAFTA.”

Yet the idea that extensions result in more creativity, more culture, more benefits for society is just not true, argued Mueller, who added that the idea to put IP into trade agreements has been challenged by trade economists since the time of the negotiation of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which was concluded in 1994.

The trademark provisions in the TPP, a US participant said, are “scandalously bad from the standpoint of small American companies” and would “violate American law.” The conclusion from reading the trademark provision in TPP, he said, is that those advising the US Trade Representative must have been either ignorant or malicious. The feeling the public had to have was that “all the international trade negotiators in the world have ganged up on them.”

Opportunity to Change Trade Negotiations

Amidst the controversies some saw a clear message emanating from the IGF with regard to trade negotiations.

Jeremy Malcolm from the Electronic Frontier Foundation called this his top experience from this year’s IGF: “The clear message sent during the main session on trade and the internet that the current model of closed trade negotiations, that excludes the internet community stakeholders, must change to become more transparent and inclusive.” It is curious that negotiations at the UN World Intellectual Property Organization (WIPO) as “exceptionally open,” Malcolm observed, recommending to draw conclusions from this development.

Despite the divisions on other issues, among trade negotiators, civil society and policymakers there is consensus on the need for inclusiveness. “Finally, the internet governance community is taking notice of the usurpation of internet issues by closed trade negotiations, and has sent a clear signal that the status quo needs to change,” said Malcolm.

Talking about the multi-stakeholder model at the IGF while regulating more technical issues like domain names behind closed doors is highly contradictory, activists said.

Cross-Border Law Enforcement, Extremism, Security

Apart from the trade agenda, the mega-conference that attracted over 3,000 participants again – resulting in many meeting rooms just being too small to house all those wanting to attend – covered a long list of old and new internet policy topics as every year. Access to the internet and infrastructure remain unsolved in the eleventh year of the forum; in fact the digital divide is growing due to faster development in the industrialised world.

Steps to close the gaps between cross-border networks and national law enforcement were envisaged in one workshop discussing a US-UK legal initiative for cross-border investigatory powers. The State Department draft for “Legislation to Permit the Secure and Privacy-Protective Exchange of Electronic Data for the Purposes of Combating Serious Crime Including Terrorism” would allow that would allow UK law enforcement to tap US providers (and vice versa) without the obligation of involving a US court. http://www.netcaucus.org/wp-content/uploads/2016-7-15-US-UK-Legislative-Proposal-to-Hill.pdf. A lot of details still need to be resolved, according to Emma Llanso from the Center for Democracy and Technology, for example who would decide what countries would be eligible for the cross-border searches and taps.

A similar initiative has been kickstarted at the Council of Europe with the intention of negotiating an additional protocol to the Cybercrime Convention allowing for cross-border cloud investigations of the 50 signatory states, including the US, Japan and several from Africa.  By June next year, there could already be a decision about the start of negotiations on such a protocol, according to Alexander Seger from the Council of Europe. Law enforcement seems to be on the brink of becoming as borderless as the network.

One more prominent issue on the IGF 2016 agenda, according to observers, was the topic of free expression and extremism. According to Malcolm Hutty from LINX, the London Internet Exchange, the organisers of one of the workshops on the topic “clearly came with a premise that extremism online requires us to get over our distaste for censorship, and the community should be coming together to find ways to build public support for censorship.” Challenges to the premise, that freedom of expression activists clearly challenge, was made to appear marginal, rather than mainstream.

IGF – Just Another Net Conference or More?

With controversies over the digital rights agendas, which are covered in more and more national debates – with a German proposal for a European Digital Rights Charter being the latest addition – the old question of the nature of the IGF as a body remains.

The IGF was set up by the 2003-2005 World Summit on the Information Society (WSIS) as a place for stakeholders to hold non-binding discussions about internet governance topics. Since then there has been a fight to allow the body to make recommendations on internet governance issues not tackled elsewhere. But that has been prevented by the UN and many member states who want to avoid negotiating efforts.

For the UN, Lenni Montiel, assistant secretary-general for economic development in the Department of Economic and Social Affairs, made clear that the IGF is no place to decide on solutions for the internet governance problems. While underlining the UN’s support to the forum, Montiel with the statement rejected the calls to have more “tangible” outcomes.

In an attempt to answer this call, a number of “best practice forums” (for example on successful IPv6 deployment, internet exchange points, and security) have been established and were tasked to produce best practice documents.

In his summary, the IGF Chair, Alejandra Lagunes, coordinator of the national digital strategy in the Office of the Mexican President,  noted that best practice forums (BPFs) “worked throughout the year in an open and inclusive way via open mailing lists, regular virtual meetings and BPF workshops during the 11th IGF meeting.” Another mechanism the IGF organisers, and the still rather understaffed official secretariat, hope can be beefed up for intersessional work are the dynamic coalitions.

Established 10 years ago during the first-ever IGF held in Athens, Greece, the coalitions have lived a moderate life, but some have come out with “tangible products” like the Charter of Human Rights and Principles for the Internet [pdf].

“Over the course of the year [2016], DCs have made significant progress toward synchronising their work and adopting fundamental common standards of transparency and inclusiveness (open archives, open membership, open mailing lists), and have developed agreed-upon targets and deadlines for the publication of substantive papers,” applauded the chair’s summary.

Currently there are 18 such coalitions, and just as to prove that the IGF is still developing and not just another internet governance conference, there will be one more after the Mexico meeting at least: on trade negotiations and the internet.

 

Image Credits: UN DESA