Special Report: Global Internet Governance Work At A Turning Point

VILNIUS, LITHUANIA – Five years after the tale began in Athens, the United Nations Internet Governance Forum returned to Europe last week to ask itself what has been achieved. The answer was encouraging enough to prompt a range of internet stakeholders to suggest continuation of the group, this time with a greater focus on concrete outcomes.

From 14-17 September, some 1,400 on-site and 600 remote participants discussed internet governance and internet access issues, rights and responsibilities as well as some more technical matters.

Despite the overwhelming support of participating governments, industry and civil society for another five-year mandate for multi-stakeholder dialogue – a remote participant from Burundi even requested an unlimited mandate – the request for “tangible results” is growing. And a session of the UN Committee for Science and Technology for Development (CSTD) revealed some of the tension under the otherwise happy IGF surface.

Tangible Outcomes?

Jeremy Malcolm of Consumers International, a speaker for civil society in the closing session, drew a picture of continuity: “The IGF was formed to address a vacuum in global governance for the internet, to give civil society along with government and the private sector influence in the development of public policy for the internet,” Malcolm said. “But we’re only halfway there.”

While the discussion on issues such as human rights and the internet, network neutrality, and the development dimension of internet governance are insightful and do not occur elsewhere in such a multi-stakeholder fashion, he said, discussions must be reduced “to a form that policymakers can use, and make sure that they don’t end here at the IGF.”

One visible sign of the wish to present a product after five years came from the normally cautious IGF secretary, Markus Kummer of Switzerland. He applauded at the closing plenary a set of principles for internet governance and internet use presented by the Brazilian delegation. Kummer said he could imagine an emerging consensus around these core principles, and that “I for myself would happily endorse them, put them on our website as IGF core principles but I know that may be jumping it a bit as we’ve always shied away from doing that sort of thing.”

The Rush for Global “Internet Principles”

There is a certain rush for principles, guidelines or rights declarations for the digital world from various actors, with the Brazilian document only being the first to hit the finish line. The document published by the Brazilian Internet Steering Committee promotes ten principles: freedom, privacy and human rights, multi-stakeholder governance, universality, diversity, innovation and net neutrality, exemption from third-party liability, security, interoperability, and the preservation of the internet as a space for innovation.

The Brazilian government originally had participated in the work of an IGF “dynamic coalition” on a bill of rights/internet rights and principles, and this coalition presented in Vilnius their version 1.0, a lengthy document that translates the UN Declaration of Human Rights to the internet. Version 2.0 is under way, a member of the coalition said. Meanwhile, a new coalition now sprang up to work on “core values of the internet.”

More principles were proposed in Vilnius by international organisations like the Organization for Economic Cooperation and Development (OECD), the Council of Europe (CoE), and Consumers International, all of them thinking about more traditional instruments. The OECD, following a multi-phase study on the push for intermediary liability, tabled a draft set of “good practices.”

“The system [of the US Digital Millennium Copyright Act notice and take-down rule] is under pressure,” Marc Berejka, senior policy advisor at the Office of the Secretary, US Department of Commerce, announced during the OECD panel. He agreed with Sheffield University IP law expert Lilian Edwards that the push is mainly coming from the content industry.

According to Edwards, rights owners “want a three-strikes regime, pre-emptive filtering, website blocking and even deep-packet filtering.” Content owners, she said, want to “move on” to a “notice and disconnection or graduated response.” In the United Kingdom and France, internet service providers could be called “copyright cops,” she said.

The draft OECD good practices include “appropriate protection and liability and remedy limitations to Internet intermediaries for actions of third party users,” but also inclusion of stakeholders in respective policy-making processes, caution not to jeopardise investment, and considerations of social cost. A decision on whether these “good practices” should become an official OECD recommendation is expected in October.

On digital rights, a competing set of principles is being worked on under the Electronic Frontier Foundation (EFF), whose International Affairs Director Eddan Katz told Intellectual Property Watch the approach would look at all existing proposals and try to make it an over-arching document.

Infrastructure Protection and Rules for Counterattacks

The Council of Europe also is deliberating about responsibility for content on the net and thinking about what Thomas Schneider of the Swiss telecoms regulatory office OFCOM described as “graduated responsibility.”

The CoE is one of the organisations using the IGF heavily to promote and present its legislative instruments. It got highly critical reactions to a draft document (not yet publicly available) of which part II contains “duties of states with respect to the protection of critical internet resources in a cross-border context,” including an obligation to prevent the citizens from involvement in trans-boundary cyber-attacks and other form of malicious activity that might harm resources in other countries.

Elena Thaci, an expert at the CoE on critical infrastructure protection, underlined that the issue of state liability was not touched, but rather left to existing international law. But Bill Drake, senior associate at the Centre for International Governance of the Geneva Graduate Institute for International and Development Studies, warned: “This will lead to a reaction from governments to step up surveillance of their citizens in order to avoid incidents and being held liable for it.” Drake said deep packet inspection – searches of each IP packet for malicious things as the packet travels through the network between sender and receiver – could well be a consequence.

The CoE received more applause for part I of its draft document, principles similar to the Brazilian principles document. But the question of international cyber-attacks got a lot of attention and there are, according to observers, also internal discussions about cyberwar scenarios in the US government. Google evangelist Vint Cerf warned against speaking too much about cyberwar and recommended instead to consider “cyber-fire departments”, because people under attack normally need help to put out the fire.

Copyright Slipping

To promote fair use in the midst of ongoing copyright wars, Consumers International (CI) placed its hope on an existing UN instrument instead of an IGF-issued document. “The IGF is a maybe friendly forum but it doesn’t have much influence yet, but the UN consumer guidelines do have influence,” CI’s Malcolm said during a panel co-organised with the Center for Democracy and Technology and Centre for Internet and Society in Bangalore.

CI therefore is pushing for an update to push for amendments of the 25-year-old UN guidelines “to include new safeguards for consumers of goods protected by copyright and patent laws,” including e-books, music, film, software and the devices used for accessing these. In a press release, Malcolm explained: “DVDs are manufactured with region codes that prevent you from playing discs that you legally bought overseas. Devices as diverse as iPhone, Amazon Kindle, e-book reader and the Sony Play station have hidden limitations on the use of third-party content or applications.” Also, works in the public domain that should be free for all are being kept in private hands using digital locks. Malcolm also said the organisation wanted to reframe IP enforcement as an issue of consumer protection.

Alan Davidson, US public policy director for Google, said on a panel on trade and internet governance that “one of our big pitches to the US government” was “to insist that free trade agreements explicitly recognise the concerns about the free flow of information online.”

Copyright again – as in previous IGFs – did not make it into the main sessions. More broadly, Marilia Maciel from CDT said access to knowledge has “lost a lot of space here in the IGF.” Maciel said that by discussing access to knowledge at the IGF she hoped to clarify an inconsistency where developed countries representatives at the IGF were promoting access to knowledge while opposing a treaty for the blind at World Intellectual Property Organization.

What’s Lacking at the IGF

Politicians so far have “either been oblivious to or perhaps even deliberately disregarded the best practices shared at the IGF,” Malcolm said on behalf of civil society in the closing session. He referred to the Anti-Counterfeiting Trade Agreement (ACTA) under negotiation by a set of mostly developed countries as an example. ACTA also was mentioned by Lynn St. Amour, president of the Internet Society (ISOC), along with net neutrality as issues discussed by governments only behind closed doors. St. Amour said it seemed “extremely unlikely that closed processes will lead to policies that support a truly open internet.”

Something else missed by critical observers during the IGF was a real debate about the privileged US oversight role over one of the core infrastructures of the internet, the Internet Assigned Numbers Authority (IANA). EU Commissioner Neelie Kroes supported by French Secretary of State for Forward Planning and the Development of the Digital Economy, Nathalie Kosciusko-Morizet, reiterated a call for a change to that arrangement.

Kroes said she was hopeful that IANA could follow the path of the Internet Corporation for Assigned Names and Numbers (ICANN), which is now evaluated by an international multi-stakeholder group instead of only by one government. The differences between the US and other governments about the future of IANA and root oversight – one of the main reasons for the start of the IGF and the still-to-be-defined process of “enhanced cooperation” – came up only briefly during the now regular plenary session on the “management of critical infrastructures.”

Bertrand de la Chapelle, ambassador for internet governance issues in the French Foreign Affairs Ministry, said with regard to both the end of the IANA contract in 2011 and of the cooperative agreement between the US government and security company VeriSign (to solely operate .com and .net) in 2012, a “common wording” must be found to define the problem. According to de la Chapelle, who will soon leave the government to become a member of the ICANN Board of Directors – it is the integrity and the security “that no one voluntarily or involuntarily can tamper with the root zone file.” Without guarantee on the US side that a new mechanism would ensure the same level of protection and security as the current system, an evolution to better internationalisation seemed improbable, he said.

Milton Mueller, professor at Syracuse University and co-founder of the Internet Governance Project, pointed to existing proposals to split the IANA functions – root oversight, IP address allocation, protocol number allocation – as an alternative to the current IANA setup. A similar proposal was made by the IP address registries (RIRs) in 2002 and the five RIRs would welcome such a proposal while they are moving to a digital certification for IP address resources that many would like to be realised under a more decentralised or shared oversight system, he said.

In a later blog post, Mueller was critical that the IGF plenary was literally “discouraged” from talking about the controversial issues that brought the IGF into being after the 2005 World Summit on the Information Society.

Long-standing and outspoken critics of US oversight from several Arab countries opted not to join the 1,400 people in Vilnius. Another critical observer of the IGF also was much quieter this time: the International Telecommunication Union (ITU), which is preparing for its plenipotentiary conference next month.

Whither IGF?

Meanwhile, the much-anticipated big debate on the future of the IGF will take place elsewhere. After the UN Secretary General’s recommendation to extend the IGF mandate for a second five-year term, it is up to the UN General Assembly to decide. But it is unclear whether the General Assembly will determine what the controversial issue of what the future IGF should look like and what reforms should be undertaken.

During an informal meeting of a special working group of the UN Committee on Science and Technology (CSTD) alongside the Vilnius IGF, civil society, industry and the overwhelming majority of the governments participating supported a division of labour between General Assembly and CSTD. The division would leave possible reforms of the IGF format, working methods, secretariat and membership advisory committee (MAG) to the CSTD committee, which almost everybody appeared to think should be multi-stakeholder again.

China Contention

The Chinese government disagreed firmly and underlined that the Assembly should not only discuss the possible continuation of the IGF, but as decided by the UN Economic and Social Council (ECOSOC) also discuss improvements “as a package.” Therefore, the quick start of the work of the CSTD working group as proposed by its designated chair, Frédéric Riehl from Swiss telecom regulatory office OFCOM, was premature. “We must pay attention to not repeat the work of what the General Assembly has done,” the Chinese delegate said.

The Chinese government also rejected a proposal to have a broad consultation on the reforms, as it would duplicate the consultation from Sharm El Sheikh (Egypt) and IGF 4. If China has its way going forward, the CSTD working group also should follow classical United Nations procedures. Translated into less diplomatic terms, this means that China does not support an open working group where all stakeholders could discuss on “an equal footing.”

China’s position in a way is symptomatic of those who still see the IGF as what IGF Secretary Markus Kummer described as “a strange animal.” While some countries view the IGF format – where “everyone who is running the internet has a front seat” – as a model for other processes, other countries feel less comfortable in that setting and are afraid to make it a precedent.

In any event, it might be too late to turn back the clock, as demonstrated for example by the powerful statement of the South-East Asian Civil Society during the stocktaking plenary. Oliver Robillo, member of the Mindanao Bloggers Community, conveyed recommendations from civil society groups in Malaysia, Thailand, Indonesia and the Philippines who requested to “immediately address as an urgent global internet governance issue the increasing implementation of laws that suppress and restrict freedom of expression and access the information, especially within developing countries.” They also urged to “fully integrate the universal human rights agenda into the IGF program” and also “to develop a plan of action in order to facilitate, follow up and monitoring of IGF outcomes.”

Southeast Asia in 2010 had its first regional IGF in Hong Kong, joining the stream of numerous other regional and national IGFs. Even if the central IGF is changed dramatically, regional ones may still choose their own paths.