Analysis Of The Working Group On Enhanced Cooperation On Public Policy Issues Pertaining To The Internet

By Richard Hill

The Tunis Agenda calls for enhanced cooperation to address issues related to the Internet and its governance. However, there was no clear agreement on how to implement enhanced cooperation, so a Working Group on Enhanced Cooperation (WGEC) was convened to discuss that matter and to prepare recommendations. A first WGEC group failed to find agreement, so a second group was formed.

The second group also failed to find agreement. Basically, there have long been two camps:

1. Those who believe that current mechanisms are working well, that they only need some relatively minor improvements, in particular more transparency, more inclusiveness, more Internet Governance Forums.
2. Those who believe that current mechanisms are not working, and that we need something very different. There are differences of views regarding what new mechanisms would be needed, one proposal being to create a new body, or a new group within an existing body, to discuss public policy issues pertaining to the Internet.

The main driver back in 2003 for these discussions was the digital divide, with spam a secondary issue; the perceived US control of ICANN was often used as an argument to justify the need for discussions.

In 2018, fifteen years later, the digital divide is worse, spam is worse, and security and privacy have become key issues; the fact that ICANN operates under the jurisdiction of the USA is also at times raised. Some are of the view that the evidence shows that current mechanisms are not working.

According to long-standing practice in the United Nations and its agencies, and the applicable procedural rules, the WGEC report should fairly reflect the differing point of view.

But the proponents of the current mechanisms did not want the report to include any meaningful critique of current mechanism. In particular, they wished to minimize, or even suppress, proposals for other mechanisms.

This is troublesome because the proponents of current mechanisms are actually actively working to put into place new mechanisms, in the World Trade Organization (WTO) or in ad hoc free trade negotiating groups.

One issue proposed for discussion in WTO is combating spam. It is not clear why spam is considered to be a trade issue. One state explained that spam reduces consumer confidence, and thus negatively affects international trade, so it is a trade issue.

But the same argument could be used for security, and has been used for data privacy. So everything becomes a trade issue and the WTO will become the “new body” that the proponents of current mechanisms say they don’t want. In particular, the intent of the proposals made to WTO is to facilitate the free flow of data.

Presumably the US and its allies don’t realize that if their proposals were accepted, they would, in the long term, favor the international expansion of Chinese Internet giants, who might well drive out the currently dominant US giants.

It is also troublesome that the proponents of moving discussions to the WTO have long vociferously argued that Internet governance discussions must take place only in forums that are transparent and inclusive.

It is well known that WTO, and related free trade agreement negotiations, are neither transparent nor inclusive, so there is an inherent contradiction in advocating that Internet governance discussions must be transparent and inclusive, and, at the same time, advocating that those discussions take place in WTO.

In light of the above, it is easy to understand why discussions of enhanced cooperation have been difficult. In fact, the discussions were so difficult that the group could not agree a report.

If one analyses the situation from the point of view of negotiation theory, one can see that the best alternative to a negotiation solution (BATNA) is the same for both sides: no report.

Proponents of the status quo did not want a report that contains references to new mechanisms, and proponents of change did not want a report that did not contain such references, since the lack of such references would have, implicitly, endorsed the conclusion that no new mechanisms are needed.

Given that the group failed to find agreement, discussions will surely continue in other forums, in other formats, for example at the forthcoming ITU Plenipotentiary Conference or at the UN General Assembly.

Richard Hill is an independent civil society activist in Geneva who was formerly a senior staff member at the UN International Telecommunication Union (ITU). He is an active member of the JustNet Coalition.