Stage Set For Global Face-Off On Internet Governance 14/07/2005 by William New, Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)Luxembourg City–A new report from a UN task force on governance of policy issues related to the Internet sets the stage for global negotiations over who has oversight of those issues. The report, the final outcome of a working group on Internet governance mandated at the 2003 UN World Summit on the Information Society (WSIS), proposes that the current US-centric control be made more international. The report contains four possible models for governance, ranging from “status quo-plus” in which oversight functions are left undecided but governments have more say, to primary government oversight with technical bodies subsidiary to them. Details of the still-confidential report were presented to participants at the 11-17 July board meeting of the Internet Corporation for Assigned Names and Numbers (ICANN), the California-based non-profit corporation that oversees the Internet naming system. A formal UN presentation of the report will take place on Monday, 18 July, in Geneva. The ICANN meeting has an almost UN-like flavour. Held in the well-constructed maze of rooms inside a convention centre left over from the just-ended Luxembourg European Union presidency, it is complete with flags, wall-sized EU images, rooms with seat-phones and translators, and, of course, pro-constitution logos. Industry representatives, with a typically strong presence at the meeting, also appear at home among the blocks of sparkling stone and glass office buildings bearing the names of the world’s biggest financial services firms. Luxembourg is rapidly attracting global businesses, with companies like AOL and Amazon having recently located their European headquarters here, while construction cranes fill the horizon above office-buildings-to-be. The working group report was intended to be informational, but it is significant because it could mark the start of process to make changes in the oversight of the Internet, making policies on issues like unsolicited commercial email, or spam, network security, and cybercrime subject to inter-governmental bodies that may not yet exist. During the UN “sneak preview” of the report to ICANN on 13 July, Nitin Desai, special advisor to UN Secretary General and chair of the Working Group on Internet Governance, called these areas “holes” in global oversight. The report also highlights a key government role in issues of development. The report addresses intellectual property rights, stating that there is agreement that balance is needed between rights of holders and users, but that differences appear on where that balance lies and on whether the current intellectual property rights system can address new issues brought about by the Internet. By example, the report notes that rights holders are worried about the high number of infringements, such as piracy of online music or film, and technologies that get around the protection measures to block that piracy. But it notes also that users are concerned about dominant players in the market, impediments to access to digital content, and a perceived imbalance in current intellectual property rights rules. UN officials at the meeting said, however, that the effort should not focus too heavily on intellectual property rights or international trade issues. On consumer rights, the report says there is a “lack of global standards” for consumer rights on the Internet, such as for international purchases online. “Users have few means, if any, to enforce their rights, even when these rights are recognized by legislation,” it said. “In the case of digital goods and online services there are problems for practical and full application of traditional consumer rights.” The report recommends the establishment of a forum for discussing issues, but says that it should be non-binding. This could evolve into a basis for negotiations, according to UN officials. Models For Governance: Change Is Necessary And the report contains four possible models for governance, all of which mandate increased government participation in the process. The first would create a new Global Internet Council with the US Department of Commerce functions and ICANN beneath it. The second would create no oversight body at all but might enhance ICANN’s Government Advisory Committee. The third and fourth models are more nuanced versions of the first, with increased government oversight. The United States was missing from the working group process, having opted out so it would not be in a position of having to agree to the group’s final report. But Markus Kummer, executive coordinator of the working group and a Swiss diplomat, said, “I would not see the report as an anti-US report, and members recognize the role the United States has played in the development of the Internet.” A formal release of the report will be held on Monday in Geneva, headquarters of the UN International Telecommunication Union, which is organizing the WSIS. Then a written comment period will follow until 15 August, after which the report will be discussed at the next (third) WSIS preparatory committee (Prepcom) meeting on 19-30 September in Geneva. Ultimately, it will be a topic for debate by senior government officials at the second WSIS, to be held in Tunis, Tunisia in November. There still will be opportunities to influence the outcome of the process, said Janis Karklins, Prepcom President and Latvian ambassador to the UN. No other formal activities will take place between the comment period and the Prepcom, but that does not exclude informal consultations, he said. Prepcom also will address political issues related to freedom of expression, freedom of information flow, good governance, and development aspects of the information society, he said. The meeting should produce a proposed implementation plan. A third issue relates to financial mechanisms for development. Discussions and negotiations in the prepcom will take place in subcommittee, which will address Internet governance exclusively, led by Masoud Kahn, Pakistan’s representative to the UN. Subcommittee meetings are public unless decided otherwise, and no meeting has ever been deemed closed, Karklins said. Stakeholders can follow the process and give views during a 45-minute segment of each day. Finally, Karklins said that with 191 governments in the UN, it can be very difficult to predict the outcome, but he expressed hope that decision made at the WSIS will be “beneficial for Internet as a system users all around the world,” and the beginning of a journey of all stakeholders that will be “an equal journey, not a hierarchical journey.” Prepare To Negotiate The Future A negotiation over Internet decision-making is intensifying. The United Nations and countries looking for more influence over the technology are gearing up for the WSIS, and have issued their report saying everybody should get a share of the power. The US Commerce Department, which has contractual oversight of ICANN, recently put a stake in the sand by reminding the world that it still has control and possibly indicating that it plans to keep it. ICANN is signalling that it wants to remain a key and independent player on all issues, but continues to say it understands its role as a technical body. ICANN officials are wary of the upcoming UN process because of its unpredictability and possible effect on their future, but they continue to assert that they are the best model of an multistakeholder body for Internet issues. ICANN President Paul Twomey told the UN panel that ICANN is “where some people in the UN would like to get to.” ICANN provided some of the funding for the working group report, and emerged relatively unscathed, foreseen as a leading organisation for technical issues. The report emphasises that governments would potentially take over the policy-oriented issues. But ICANN is stepping up to meet the challenge of the UN push for Internet control, and the focus has turned to timing and existing agreements. In the board meeting, ICANN leaders are trying to push through a draft strategic plan against significant antagonism from business groups that argue it lacks consensus. Cerf answered them that the organisation would be vulnerable if it did not have a plan. The draft plan has numerous references to the internationally effective nature of ICANN’s self-governing processes. For example, it states, “ICANN brings together the spectrum of Internet stakeholders and users, including businesses, governments, non-commercial, technical, and individual users, and provides mechanisms for their bottom-up coordination of policy development related to ICANN’s specific role in the management of the domain name system and unique Internet identifiers.” The plan covers 2004 to 2007, the period of ICANN’s latest version of its memorandum of understanding with the US Department of Commerce, which retains a degree of oversight of ICANN’s activities. These contracts raise the question of whether the United States can hand over authority without agreement from ICANN, which is not showing an interest in such a move either. Speaking to the UN event, Twomey referred to a “clash of ideas taking place” and said ICANN may find itself in “interesting situation” as the process moves forward. Desai referred to the need to thank the United States and others involved in making the Internet a success for their work, and to recognise that it has now become a fully global technology critical to every society’s functioning with a billion users now. He said a lesson of the past is “flexibility”, but that the focus is on the future, the next five years, not the past. Desai added that the working group started out being seen as focused on ICANN, but that it had moved beyond that. Some 70 or 80 percent of the public policy issues it lists are not about ICANN, he said. Desai insisted it is “not the intention of anybody” to take over all aspects of the Internet but to have a dialogue function and address the “holes” at the global level. ICANN Chairman Vint Cerf, a creator of the Internet, appealed to the UN officials to “Please think about the Internet as this incredibly complex thing” with many levels and technical components connecting all over the world. US industry representative Marilyn Cade said she might use the terms “historic, dramatic, and scary” to describe the proposals of the working group. But Desai said the UN does not have a preference on which governance model is chosen. “As far as I am concerned, all four brides are equally beautiful,” he said. As to the working group, Kummer said it was a “black and white picture” at the outset, with some viewing it as very good and others as very bad, as well as United Nations versus ICANN. But the report does not question ICANN, he said, adding, “I would say we moved from black and white to different shades of grey” and gained a better understanding of the issues. Syracuse University Professor Milton Mueller, whose group has proposed a framework convention on Internet governance, raised another kind of grey area that could make it difficult to define whether an issue is purely technical or political. ICANN recently approved a .xxx suffix for adult content websites on the Internet, and was roundly criticised by government officials who said they are getting questions about who in their government agreed to such a thing. The answers to those kinds of questions are still to come, he was told. ICANN Deflects Doubts About Internet Handover From US ICANN is facing questions this week about reports that the US Commerce Department has declared it will not relinquish control of the Internet to ICANN as planned. ICANN leaders disagree with the interpretation of the Commerce statement. “We don’t speak for the US government, but from our perspective, the first three points [of the Commerce Department announcement] are statements of fact,” ICANN President Paul Twomey said in an interview. “The fourth point is a statement of the US government’s preferences when it comes to international organization’s meetings.” “We note that the statement is written in the present tense,” Twomey added. “We continue to work toward conclusion of the MOU in September 2006. The timing of the statement has to be taken in the context of international intergovernmental meetings. We do not see the statement as some sort of radical disenfranchisement of ICANN.” Vint Cerf said in an interview, “A lot of people seem to think [the Commerce Department position] is a change. I think that it isn’t. The statement could be seen as ambiguous, but it is written in the present tense. My interpretation is that it is a statement of current affairs.” Cerf called it “understandable” in the run-up to the WSIS, as it is not known what WSIS will conclude. The Commerce Department and ICANN have two contractual relationships. One is the memorandum of understanding (MOU) that ICANN will assume responsibility for the technical operation of the Internet domain name system when it finally meets criteria Commerce has specified. It has been renewed numerous times, and right now is slated to end at the end of September 2006. The other, and perhaps more important, is a contract to oversee the Internet Assigned Numbers Authority (IANA), which, as it states on its website, is “dedicated to preserving the central coordinating functions of the global Internet for the public good.” It is the body that decides what changes are made to the underlying “root zone” of the Internet. “If you are the US government with the responsibility of overseeing ICANN, and have contractual obligations and are anticipating an unknown outcome from WSIS… you can only say here’s the current situation,” Cerf said. It could be expected that the US government would state that it does not plan to do anything that would threaten the security and stability of the Internet, he said, which could include letting go of some of the control. Cerf pointed out that the US statement does not indicate that it will not honor the MOU. In fact, he said, it remains possible ICANN could finish the remaining tasks to complete the MOU ahead time, but he did not predict whether this would happen or not. If ICANN did complete the tasks early, then the United States would have a decision to terminate early, he noted. “All of the timelines have unknowns in them,” he said. Asked whether the United States would relinquish the IANA function when the MOU is completed, Cerf said the ICANN and IANA functions are intertwined at this point, suggesting that giving independence to ICANN would include handing over control of the IANA function. Cerf has in the past shown resistance to the prospect of a United Nations takeover of Internet governance. On the first day of this meeting, he sounded less vitriolic, suggesting mainly that a “multistakeholder approach is really important,” and that the WSIS process is increasing its recognition of a variety of stakeholders. But he noted that the UN process is still primarily an inter-governmental one, which makes it different from ICANN, which equally includes non-governmental and industry views. He suggested that the US position on ICANN put forward recently is understandable if the WSIS ends up an inter-governmental process, as the United States would want to preserve all options in that debate. ICANN hopes to continue as an “important stakeholder” in the US process, as it is the “present-day responsible party.” Separately during the week, ICANN’s new ombudsman released his first annual report, and ICANN’s Security and Stability Advisory Committee released a report entitled, “Domain Name Hijacking: Incidents, Threats, Risks, and Remedial Actions.” In addition, the ICANN board approved its 2005-2006 budget of approximately $US23 million, up from approximately $US16million in 2004-2005, which itself represented a doubling of the budget of about $US8 million in the previous year. 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