2011: Renewed Fights Over Internet Control In A Post-Wikileaks World

For many experts in internet governance the future of the multi-stakeholder model is the top issue in 2011. The participation of governments, technical experts, industry and civil society in discussions about how best to organise – and regulate – society on the net is at stake.

Experts said as much in reaction to a decision taken at the United Nations in December that put governments in the driver’s seat for reforms of the Internet Governance Forum (IGF) and to additional calls for a new, government-only, UN body to discuss public policy internet issues. The internet governance ecosystem faces tough decisions this year with the contract for management of the heart of the domain name system (DNS) – the root zone – running out in September and the final word for the delegation of new top-level domains overdue.

When the Geneva-based UN Commission on Science and Technology for Development (CSTD) created a government-only working group to decide on reforms for the next five-year mandate of the IGF starting in Nairobi, Kenya next September, there was a considerable public outcry. A petition initiated by the Internet Society (ISOC), signed by 15 key organisations and over 3,000 internet users and companies “in a mere 2.5 weeks” showed, according to ISOC internet policy analyst Bill Graham, “that the multi-stakeholder model enjoys a high level of public support and awareness.”

Future of the IGF

The Internet Governance Forum created by the 2003-2005 UN World Summit of the Information Society (WSIS) has been declared the harbinger of the multi-stakeholder principle, leaving aside earlier attempts to establish government-overseen self-regulatory internet management structures like the Internet Corporation for Assigned Names and Numbers (ICANN). A UN creature, the IGF since 2006 has attracted nearly 2,000 people each year to its annual conferences with promises of nothing more than “dialogue” about the hot issues in net governance.

There have been calls along the way for the IGF to take a leading role in global net governance by publishing some form of recommendations on the issues discussed. But many western countries have like a mantra repeatedly underscored that the value of the dialogue is its non-decision-making character, as if an IGF turned loose might cut into their role as the sovereign authorities.

Yet the multi-stakeholder model has its fans – even in the government camp – so governments finally felt compelled to review their decision on the working group during the meeting of the UN General Assembly. The 22-government member group now has “invited” an additional 20 members – five each from civil society, the academic and technical community, industry and international organisations. But these “invited participants” are not “full members” of the group, according to Thomas Schneider of the Swiss telecommunication regulatory authority OFCOM.

OFCOM Vice-Director Frederic Riehl is chairing the CSTD working group and has now the difficult task of allowing it to be open – as demanded by industry, academics, civil society, and many governments – while on the other hand paying respect to the decision pushed by more conservative governments to limit the influence of the non-state actors. What’s conservative here? For some governments, like the United States, it just means conserving the status quo of the critical internet resource management – especially secure, private and US-overseen root-management. For others, like one-party-state China, conservative means to stick to patriarchal hierarchies instead of colourful and unpredictable pluralism.

“We will do our utmost to ensure an open and transparent process,” Schneider promised and pointed to the plan to publish a mid-term report on IGF reforms around March. The IGF reform working group has a tough timetable with meetings in February and March and an aim of reaching a final draft in April and a decision by UN Economic and Social Council (ECOSOC) in May.

Still, non-governmental participants are wary and calls to boycott a process that relegates them to being mere onlookers have not died down.

That long-time IGF Executive Secretary Markus Kummer had to step down by the beginning of 2011 did not help in the eyes of the pessimists. Kummer, a Swiss diplomat who managed to carve out the difficult compromise on internet governance during the WSIS, originally said he just had been in the wrong place at the wrong moment by landing in the position. Yet observers – friends and foes alike – give him much better marks as one of the driving spirits of the IGF together with IGF Chair Nitin Desai.

“It could kill the IGF,” one pessimist from civil society told Intellectual Property Watch. Death for this pessimist also means governments taking over.

“We move one step forwards, two steps back,” said Wolfgang Kleinwächter, who is a professor of international law at the University of Aarhus, special advisor to the IGF chair, and outgoing chair of the ICANN Nominating Committee. “The key question here is, who has the authority to define what improvements mean for the IGF,” he said, adding that he is convinced that it’s too late to put the genie back in the bottle and allow governments alone to regulate the world as they please.

Graham agreed that successful solutions to the most challenging internet policy issues including net neutrality, cybersecurity, copyright protection or privacy will come as a result of stakeholder collaboration – also on the national and local level. But he is more pessimistic with regard to the trend. “Those concerned with maintaining a healthy internet ecosystem will have to engage with their home governments, and with regional and global organisations to ensure the multi-stakeholder model is understood and embraced,” he said.

IBSA, the Fight over the Root, and New Domains

The concerns about a backlash against governance as the new government model were further intensified by proposals tabled during a consultation of UN member states at the 65th General Assembly in New York in December, according to Graham and others.

India, Brazil and South Africa (so-called IBSA) promoted a new inter-governmental UN platform [pdf] to talk about internet public policy issues. With the Governmental Advisory Committee (GAC) of ICANN, the intergovernmental UN International Telecommunication Union (ITU), the UN ECOSOC and CSTD and the IGF already prepared to do at least bits of the public oversight job, some wondered if there is need for yet another place for global internet governance.

Yet IBSA was trying to address a core issue – perhaps the core issue – governments have fought over since WSIS: the unilateral oversight of the root zone management by the US government. The US is still checking most of the changes to the central root zone file and watching closely over the Internet Assigned Numbers Authority (IANA).

In theory, the US therefore has a better handle with which to obstruct the introduction of a controversial, new TLD like .xxx or, even worse, pull the plug of an existing one. To most experts, the latter is an only theoretical menace. But the introduction of .xxx once more before the ICANN Board in 2011 might have evolved faster if the US government had not been among the most ardent opponents.

A recent seizure of around 80 domains by a Department of Homeland Security agency, some mere search sites like torrent-finder, have added to the concerns the US is using its closer grip over many core registries to mount Web censorship. For the 80 domain seizures, .com and central DNS root registry VeriSign received sealed court orders.

The muscle-flexing of US politicians after the publication of US diplomatic cables by Wikileaks added more concerns. The State of the Net Conference of the NetCaucus today in the US asked the crucial question: “can the US still support a free internet in times of Wikileaks, cyberwar and rampant copyright piracy?”

What’s more, with the introduction of new cryptographic elements for better DNS security, namely DNS Security Extensions (DNSSEC) in 2010, there is even more to check for the US National Telecommunications and Information Administration (NTIA), the Commerce Department office that handles the ICANN relationship. NTIA now, in addition to new domains or possibly new top-level domains like .shop, also has to approve the cryptographic keys for TLDs. Some technical experts are afraid that the administration is not up to speed for emergency cases when compromised keys have to be changed quickly.

One can imagine NTIA might have nightmares about ICANN introducing hundreds of new TLDs into the DNS root in record time. The TLD introduction (with applications for .nyc, .berlin, .music or .shop waiting) is a leftover issue from 2010 (and the years before), still slowed down by IP rights owners and governments, including the US government. Governments and rights owners have voiced concerns about a rise in trademark infringement and politically sensitive TLD names.

The ICANN Board Chair Peter Dengate Thrush in 2011 has to move forward on the new TLDs this year otherwise the group loses credibility. Between 28 February and 1 March, the Board and the GAC will hold a special session in Geneva to try to solve the outstanding issues of the already complicated application process. The openness of this Board-government special session has already been questioned by some like US lawyer Michael Palage, a former ICANN Board member.

ICANN in 2010 has worked without a direct contract with the US government for more than one year (the affirmation of commitment was signed 30 September 2009). It works with small, stakeholder-mixed oversight groups preparing reports on accountability and transparency, security, consumer trust and the embattled Whois data (domain name registrant personal information). How ICANN will process the recommendations from the reviews could be seen for the first time in 2011 with the accountability report up first. For its March 2011 meeting in San Francisco, ICANN has secured a big shot to support the self-regulatory body’s agenda: former US President Bill Clinton will address the meeting.

Still, despite the more internationalised ICANN oversight, NTIA remains free to renegotiate the IANA contract to manage the root. And so the IBSA paper concluded, that while there has been “positive movement towards improving transparency and accountability in the activities of ICANN,” the fact that “only one country, instead of the international community of States, is the provider and guarantor of the management of names and numbers of the Internet in all countries,” was contradictory to multi-lateralism.

As long as the fight about who rules the root is ongoing, the list of new bodies proposed by those outside might continue to grow, and alternatives to the US-overseen single-root DNS will become more attractive. A proposal from Pirate Bay spokesperson and Flattr founder Peter Sunde for a peer to peer (p2p) domain name system recently got some attention, but was neither the first nor will it be the last. “Having a centralised system that controls our information flow is not acceptable,” Sunde said after the domain seizures by the US.

The Brazilian representative at the UN similarly pointed to concerns about control of the flow of information in the context of the Wikileaks case. Wikileaks has published a steady stream of classified documents of US diplomats since November and faced tough reactions from infrastructure and financial providers, mainly in the US, which stopped servicing the whistleblower site.

It is an open question how the UN Secretary General will react to the deep schism between those supporting IBSA and those completely opposed to a UN group talking about control on the net. Most likely, according to Schneider, the “enhanced cooperation report” of the Secretary General will just record the schism, and not much ground will be gained.

On how the IANA issue will evolve over 2011, stay tuned, as EU Commissioner Neelie Kroes also asked for internationalisation of this part of the internet infrastructure and NTIA seems to be so afraid to talk about the issue that neither their spokesperson nor their experts responded to questions on a procedure for the rebid.

Kroes answered questions from Intellectual Property Watch about the IANA prospects in 2011: “At this stage, I think it is too early to suggest that the US government is opposed to consulting with international partners,” she said. “From my contacts with the administration in Washington, I feel there is some understanding that discussing internet governance issues, notably the future IANA contract, can be a useful step in enhancing the stability and security of the global internet.” This was, after all, “a common objective that the US government shares, and an area where active cooperation between all the players is in our interests.”

Platforms instead of Intergovernmental Processes

Wikileaks and potential conclusions from that case could be expected to be discussed alongside a meeting on the protection of cross-border infrastructures organised by the Council of Europe (CoE) on 18-19 April, Lee Hibbard, expert at the Council, told Intellectual Property Watch.

“The topic is on everybody’s lips,” he said. At the regional IGF for Europe, the EuroDIG, in June 2011 in Belgrade, there are several proposals for workshops on freedom of speech online, with a proposal from the Nexa Center for Internet and Society at the Politecnico die Torino to discuss government transparency, anonymity online and whistleblower support.

The CoE is one of the regional organisations that has been using the multi-stakeholder IGF and the EuroDIG – which it supports with a secretariat – extensively, another being the Organization for Economic Cooperation and Development (OECD). Both organisations have presented possible recommendations tackling the challenges of a borderless net at IGF sessions.

At the EuroDIG, the CoE plans to present and discuss the revision of Convention 108 (its data protection convention) in light of new technologies, the trans-border access to data and data flows in the context of the fight against cybercrime and the Lanzarote Convention against sexual exploitation of children on the internet. Perhaps the most ambitious project is the CoE work on cross-border infrastructure protection.

According to Kleinwächter, chair of the CoE working group on this issue, this work targets three levels of policies: from a non-binding magna carta for net governance principles, to recommendations for a set of obligations and duties of states to protect the infrastructure, to a possible series of intergovernmental internet protocols.

Based on the latter, governments could in the future negotiate a series of “intergovernmental internet protocols” as Kleinwächter describes them. The latter could try to address specific problems, one by another in a progressive way. The CoE wants to go global with this work to free the results as good as it can from the label “regional only”, according to Kleinwächter. After the April multi-stakeholder meeting, consultations should be broadened beyond the CoE region. The CoE will try to be at the service of the global community in times when international law has reached its limits, and fail to conclude their negotiations.

“Platforms” gathering the various regions and stakeholders would be perhaps more effective, said Kleinwächter. The platform or social network idea seems to be attracting consideration lately. The secretary general of the World Intellectual Property Organization, Francis Gurry also pointed to the effectiveness of those new networks recently. Intergovernmental organisations face huge difficulties in coming to consensus. For instance, the ITU’s plenipotentiary meeting in 2010 was described by one government official as agonising and a lot of words to reach minimal agreements.

End of the “Old” Internet

The ITU at this moment seems to be catching its breath and was unable to provide information on its internet governance programme for the year. A topic the organisation has on its agenda and eyed with some suspicion by the internet protocol world, is the introduction of the new internet protocol version 6 (Ipv6).

A special working group on this topic – which is put top on the 2011 internet governance list by the more technically oriented experts – meets in April in Geneva. IPv6 will take centre stage as soon as the currently used IPv4 addresses run out – and this will happen in 2011. IPv6 is a “real priority for the internet overall,” said Bill Graham of the ISOC.

Graham also pointed to one more thing with regard to 2011: “We shouldn’t take the internet for granted. In addition to the 2010 developments in the UN context, we have also seen continuing threats to freedom of expression and non-discrimination as we’ve seen with Wikileaks and recent developments in the US and the UK (not to mention other less-liberal countries), the increasing move to closed environments, the claims that we can’t be safe and secure as nations or users on the internet, and more. All of these trends threaten the very nature of the internet.”

Can the Group of 8 countries be of any help here? Nicolas Sarkozy seems to think so. Sarkozy has made internet policy a topic for the G8 Summit in 2011, adding yet another aspirant to the internet governance crowd this year.