Interview With Markus Kummer, Head, UN Working Group On Internet Governance

In the lead-up to the Second Phase of the World Summit on the Information Society (WSIS), to be held in Tunis from 16 to 18 November, government negotiators are working to form a text for leaders to sign. A key contribution to the process is the recent report of the Working Group on Internet Governance (WGIG), which is central to the discussion at this week’s WSIS Preparatory Committee meeting in Geneva. Markus Kummer, a Swiss diplomat, was executive director of the WGIG secretariat. He spoke recently with Intellectual Property Watch about the report and the WSIS process, and also discussed the tension between governments, the UN International Telecommunication Union, which is organising the WSIS, and the California-based Internet Corporation for Assigned Names and Numbers (ICANN), which oversees technical aspects of the Internet under agreement with the United States government.

Intellectual Property Watch (IPW): What is the status of WGIG report to Tunis summit?

Markus Kummer (MK): The working group had an intense half-year to work on this report. But our mandate as working group now is over, and it has been transferred into the WSIS context. There are a fair number of comments [about the report] from about a dozen governments, also organisations, academics, NGOs [non-governmental organisations]. These comments [got] condensed in a compendium report that will accompany the WGIG report and [went] as a document to the PrepCom [the third Preparatory Committee meeting, 19-30 September in Geneva]. That will be last PrepCom prior to the summit, and this PrepCom has the task of negotiating text that will be the political outcome of the WSIS in Tunis.

IPW: What is your role from here on out?

MK: It is a more unofficial role in a way of accompanying and explaining the report. I will attend the meetings, and when asked I explain. I don’t have a proactive role with regard to promoting the report whatsoever, I’m just here to help people understand the report.

IPW: The report listed several possible models for a way forward on Internet governance, and all of them suggested some degree of change. There seems to be a general feeling outside the United States perhaps that there needs to be a greater internationalisation of the Internet. Can you speak to whether this report is urging change?

MK: Well, the report is basically a consensus report. You alluded to the four options or different models. This reflects the fact that the group was unable to agree on a single model they would see as the answer to all the questions. But they came up with four different options. This was, as a procedural matter, decided fairly early, that the group did not see itself as negotiating group but as a group that would have to do some work that would help facilitate the negotiations, and it took off somewhat the pressure as the members would not necessarily have to compromise to come up with one single model. That’s the reasoning behind the four different options. The rest is consensus language. For instance, the proposal to create a new forum to discuss Internet issues is clearly a consensus proposal, and also the statement that calls for further internationalisation is a consensus opinion of the group’s members. The report is not that explicit on how the transition from the status quo to any new model should happen but the report clearly also states that whatever changes are made they should not endanger the security and stability of the internet.

You mentioned earlier the headlines in the US that suggest ‘UN plots to take over the Internet’. This is clearly a misrepresentation of facts. The group was set up because the summit decided to set up the group. It was not a UN initiative. It was all the member states that decided to create this group, and all member states include the United States. It is not so much a UN group, it is in a way at an arm’s length from the UN as an institution. The link is clearly the Secretary General. The mandate was given to the Secretary General and the Secretary General nominated the members.

The discussion has evolved in the course of the group’s work. In the summit in 2003 there was very much a discussion that was almost a dichotomy, ITU versus ICANN. This report clearly is not any more about ICANN. The ICANN functions are not seen as problematic. ICANN is not being questioned. What is being questioned is more the institutional anchoring of ICANN, the institutional architecture around ICANN and also the question of what some call international legitimacy, whether there should or should not be a link to the United Nations. The proposed forum, for instance, says ‘preferably linked to the United Nations’ without giving a firm statement.

We managed to create a very open way of proceeding which allowed private sector, civil society, any actor related to the Internet to participate on an equal footing. This was quite remarkable in itself. Some civil society members went so far as to say this should be the model for UN reform or for the Millennium Summit. But this maybe overlooks the fact that this approach worked thanks to the specificities of the Internet where you have the non-governmental actors in the driving seat and the governments are only now trying to come in. It’s basically the other way around with all the other activities where you try to bring in private sector, civil society to enrich government activities, but here it’s the governments who are trying to find a seat at the table to discuss Internet governance. I would say that is why our very open and inclusive approach worked.

IPW: Let’s quickly run through the process. There’s the PrepCom, and then there will be negotiating informally leading up to the November summit. What’s the likelihood that by the end, this report will look anything like it did when it was released?

MK: The report is not the basis for negotiations. It is an input and it will be the task of the chairman of the PrepCom to condense a text out of all this, the input and the comments, as a basis for the negotiations. So we may end up with five paragraphs, whatever. Sometimes the result can be rather vague. Like we had at the end of WSIS I, we asked the Secretary General to set up a working group. Then you leave it to someone else to sort out the details.

IPW: Are the stakes very high on Internet governance? What is the downside if they can’t change the existing structure?

MK: There are concerns that I mentioned before about the stability and security of the Internet and this is a very legitimate concern. Our report also states this WSIS principle relating to the stable and secure functioning of the Internet was considered to be of paramount importance, and the WGIG agreed that any agreements aiming to improve current government arrangements should be fully assessed in terms of how they would affect this principle. There are people who fear that any change could politicize the management of the Internet and endanger the stable and secure functioning. The working group also recognised, not explicitly in the report, but it recognised that the United States has played a very beneficial role in developing and deploying the Internet and one member even said we have to be grateful to the United States, but then this particular member added, but, the time has come to internationalize these arrangements.

If you look at it, it is in a way a fairly natural process. You have now something that came out developed from a very narrow academic circle, I think it was four academic institutions from the West Coast of the United States, to a medium which is a global backbone for the emerging knowledge economy and society with one billion users. It is normal that by now there is huge interest in how this works and that governments want to be involved, and in particular developing countries who felt they have been a bit absent. It’s the beginning also of a dialogue between different cultures on the one hand of the Internet community, scientific communities, private sector and on the other hand you have the classical world of government diplomacy who have declared their interest in having a say on this, and it’s a question of finding a common language and of sitting together.

This has been the beginning of a process which will carry on well beyond Tunis because the Internet is so important regardless whether any changes will be agreed on or not on existing governance arrangements.

The report also clearly identifies some issues which are not at all part of the ICANN agenda, like cybercrime, cyber security, spam, but also freedom of expression is an important issue. The report is clearly placed in a developmental context. The report identifies two cross-cutting priorities which are are interrelated. On the one hand, to ensure the effective and efficient participation of developing countries in governance arrangements and give them more say in these arrangements, and on the other hand to enhance their capacity to do so. Obviously if they do not have the capacity, they will not have an effective and meaningful participation.

IPW: On intellectual property rights, how would characterise what you think will happen from here on?

MK: I would like to place this into context. We had four categories of issues, one relating to infrastructure and management of Internet resources, both physical and logical infrastructure; then issues relating to the use of the Internet, such as spam, cybercrime, network security; then issues which are important but which we found have existing organisations that are already dealing with them. These included important issues like trade, where you have the WTO, and intellectual property where you have the WIPO, who are dealing with the issue. On both of these very important clusters of issues, we have not said much. This is even more glaring when it comes to trade.

When it comes to intellectual property rights we have one paragraph which identifies the issues and points out the need for a balanced approach between the rights holders and the rights of users. But the group felt very much that this would best be left where it is dealt with. It proved also a very polarizing issue within the group. It would have been impossible to come up with any proposal that would have gone beyond stating in very general terms this need for balance. This reflects also the very thorny negotiations we had at WSIS I where intellectual property rights again was one of the most delicate issues to be dealt with. Then it was very difficult to find a balanced paragraph.

On the whole I think there was a decision not to reopen what was negotiated at WSIS I, but it’s always difficult to say what is reopening and what is not. My feeling is that there will be those who will try to put it on the table.

IPW: US industry has clearly stated in its comments to the working group and WSIS process that it is concerned about increased UN participation because they fear it will affect the commercial side of the Internet. What is the advantage for developed country industries, and by extension the US government, in backing greater internationalisation of the Internet?

MK: To this I would answer that a larger sense of ownership of developing countries would not be contrary to business interests in developed countries. Obviously there are issues that are being discussed, clearly different views are held. We also touch on the thorny issue of interconnection costs, but I think the report is quite balanced on that. But clearly it is a problem for developing countries because it makes access for them more difficult, more expensive, and I can’t see why it would be against industry interests to find measures that would enhance the access and help to spread the deployment of the Internet in developing countries. The more users you have, the more customers you have. There may be some operators who take advantage of present cost structures, but this is difficult to assess as they are private sector arrangements. Also the more traffic you have, in the end I think this is also in the business interest.

IPW: But does it take the UN involvement to increase that presence?

MK: Not necessarily. But I think the UN here serves as a platform to discuss these issues. The issue has been discussed in an IT context, but there it has been discussed very much based on the telephony model, and the architecture of the telephone is different from the architecture of the Internet and this is precisely why they never came to a conclusion in the ITU context. The merit of the report is to address it in a more multidimensional mode and to acknowledge the fact that there are many questions related to this and if for instance the summit comes up with a recommendation, and as I said, there will not be a single solution. It’s related to Internet exchange points, it’s related to local content. The more local content you have the less they need to access foreign ISPs [Internet service providers], foreign websites, so it is a multifaceted problem. But I think the fact that the UN is a relatively neutral platform to allow for this discussion may help to advance the agenda on this issue. It would serve precisely to discuss these issues, maybe make recommendations to various institutions, private sector players, to take up and look into these issues.

IPW: Is it true that issues related to the WSIS are not only subject to negotiating within the room of the PrepCom and again at the summit, but also to a great deal of lobbying from the private sector, NGOs, all the stakeholders as well as between and among the governments themselves? Can you describe that process in the way that it’s occurring right now?

MK: The period of commenting on the report is a very transparent way of allowing governments and stakeholders to express their opinion. They can read what various actors think and feel about the WGIG report. And then there is the more, shall we say, Geneva diplomatic community, that’s the chairman of the PrepCom, the designated chairman of the subcommittee that is to deal with this issue. Maybe they will have informal luncheons or meet for a coffee to discuss the plain mechanics of how we should deal with it in the negotiating context, and clearly in the PrepCom there will be all these lobbying activities you have alluded to. Clearly the private sector has very strong interests, at the same time civil society has never been shy on these issues and they have slightly different views on these issues. But I think also our report reflects all these varying interests quite well.

IPW: There was great excitement about WSIS I but there were some who were disappointed with the outcome and are looking to WSIS II to make a real difference. Should people care about the WSIS II or is this just another bureaucratic exercise?

MK: I was closely involved in WSIS Phase I but cannot comment on Phase II because I focused on Internet governance. But I was asked this question: Has the mountain given birth to a mouse? Right from the beginning I engaged in expectation management and said, don’t expect too much. Time is very short between WSIS I and WSIS II, and opinions are very strong. They were diametrically opposed in 2003 and it would have been naïve to expect they all come around either one way or the other.

But what happened now is I think we have moved to a higher level of understanding of a complex issue. There are problems out there that need to be addressed, and we identified these problems, and in one way or another the international community ought to address these issues, and the question of ownership of the Internet is an important question for the future of the Internet, and that brings me back to the developmental complex. If a large part of humanity feels excluded from governance arrangements then it’s not a healthy basis. So if we can in one way or another pursue the process we have started then it will turn out beneficial for the Internet. I would say this is not just a bureaucratic exercise. Hopefully it will also lead to some concrete actions.

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