A civil society agenda for Internet governance in 2013: Internet freedom in a world of states, part 3

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A civil society agenda for Internet governance in 2013: Internet freedom in a world of states, part 3
User: terminus
Date: 18/2/2013 3:30 pm
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Our starting point in developing such a proposal should be to make global Internet governance processes more democratic. In principle, democracy is very straight-forward: it simply requires an accountable and transparent process by which those who will be affected by a decision have an equal say in how that decision is made, provided that the decision also respects the fundamental human rights of all.

In practice, it becomes more complex, particularly at the global level where the proportional representation of those impacted by global public policy decisions is impractical. Even so, a consensus has emerged that in the context of Internet governance, the multi-stakeholder model is the best approach to the democratisation of global institutions, in that it promotes the inclusion of all affected viewpoints in the policy development process, roughly grouped according to their typical roles, competencies and interests in that process.

Another insight that has emerged from democratic practice and literature, and of equal importance in the development of any proposal for an enhanced cooperation framework or mechanism, is that better decisions are reached when democratic processes are deliberative. What this means is that we should not merely express preferences, but debate them, in an inclusive forum where power imbalances are, as far as possible, taken out of the equation.

The existing grassroots Internet governance institutions responsible for technical standards, such as the IETF, offer a good model to emulate – though they are certainly not perfect. The IETF, for example, has problems with inclusivity, and has expressed its own concerns that

The IETF is unsure who its stakeholders are. Consequently, certain groups of stakeholder, who could otherwise provide important input to the process, have been more or less sidelined because it has seemed to these stakeholders that the organization does not give due weight to their input.

Thus, a recent initiative of Internet standards bodies including the IETF and W3C (the OpenStand Principles) has been criticised within civil society as being too market-focused, and paying insufficient attention to broader public interest objectives such as inclusion. To mention this here is not to criticise the IETF, but simply to point out that multi-stakeholder governance is not something that even the much-lauded Internet technical community organisations have yet perfected.

We should therefore also be open to innovations in multi-stakeholder governance from outside the Internet technical community, and – yes – even those from within the UN system. Consider that WGIG was such an innovation – it was a truly multi-stakeholder group, that developed a set of policy recommendations through a deliberative democratic process, quite unlike the stereotypical United Nations diplomatic conference. WGIG not only met in person, but also conducted its work online through mailing lists and a wiki, and when text could not be agreed – notably on the future of ICANN – this did not result in the collapse of the discussions, or in a compromise declaration full of weasel words; rather, four alternatives were given as food for further consideration.

Admittedly, in our creativity to develop a balanced multi-stakeholder framework or mechanism for enhanced cooperation we are working under one limitation – the Tunis Agenda's pronouncement that "[p]olicy authority for Internet-related public policy issues is the sovereign right of States. They have rights and responsibilities for international Internet-related public policy issues." This is a proposition that it will be difficult for many Internet freedom activists to accept. Yet all governments participating at WSIS (yes, even the United States) agreed to this. Even before that, in fact as early as 2000 with their effective declaration of sovereignty over country-code domain names, governments had thrown down the gauntlet in this regard.

Ultimately, many of us would all like to see a world in which the nation state does not exercise a dominant role in global governance, but in which transnational networks of individuals, voluntarily entered into and potentially overlapping, negotiate the rules and principles under which we live. But that world has not yet come to pass, and in the meantime the future of Internet goverance hangs in the balance. Essentially, unless we are happy to be confined to the use of non-state mechanisms of governance such as markets, technology and norms – which as explained above is untenable – then we have no choice for the time being but to accept a role for states that is (at least in formal terms) broader than we might wish.

It is incumbent upon us however to ensure that in practice, this role is strictly circumscribed, and in practical terms is as near as possible to an equal role with that of the other stakeholders. WGIG provides an example of this, but we have precedent much further back than that – the International Labour Organisation (ILO), for instance, which incorporated civil society and industry representatives as full voting members since its inception in 1919. The Aarhus Convention is another example of an intergovernmental instrument that treats the public as a full and equal stakeholder in policy development processes.

The need for a concrete proposal

So the challenge for civil society is to be creative. The Tunis Agenda, after all, was an agreement between governments only (civil society wrote its own, dissenting WSIS outcome document), and as such the other stakeholders can, at the very least, advocate for a flexible interpretation of its language. There are many options that we could, and should, be putting forward for a balanced framework for global Internet policy development – a Wikipedia-style collaborative project, a Pirate Party style liquid democracy, or Github-inspired set of "forks" of best practice documents, just to name a few. A recent civil society proposal, the Enhanced Cooperation Task Force or ECTF, borrows heavily from the processes of the IETF – and why not?

For my part, my research (and my experience of what governments will and won't accept) leads me towards an organisation style called the consociation, or consensus democracy. This is a structure in which all stakeholders develop policy positions together in a deliberative process, yet ultimately are also required to come to a consensus as individual stakeholder groups, effectively giving each group a right of veto over proposals of mutual concern. This, as I perceive it, is the only way in which governments might be induced to participate in an enhanced cooperation process that did not otherwise accord them a dominant position over the other stakeholder groups. 320 pages into my original development on this idea, I wrote that:

an appropriate structure for a transnational network for Internet governance could consist of an open and transparent forum within which members of all stakeholder groups deliberate with the aim of reaching consensus, led by a meritocratic executive council to which each group appoints its representatives using consensual or democratic means, and which would be required to ratify all decisions of the forum by consensus.

Such a group could act as a complement to (not as a replacement for) the existing Internet governance institutions, and might conveniently be attached to the IGF. It would address only those areas that in which there is not already a democratic, multi-stakeholder process for developing public policy principles at the global level. It would seek to reach a consensus on such principles where possible, to provide guidance to regulators, online businesses and other stakeholders who have a need to implement policies in a coherent and coordinated way, that takes account of the perspectives and human rights of all those who will be affected by those policies. The actual implementation of its recommendations would largely continue to be decentralised as it is at present, and would also depend on upon the ratification of those recommendations by each individual stakeholder group according to whatever procedures that group itself had agreed.

This is just one option, of course, and it may have its faults. The point is not to push this particular proposal to the exclusion of others, but rather to underline the critical importance of beginning a conversation on such concrete proposals that could take the enhanced cooperation mandate forward, rather than digging our heads into the sand and wishing that mandate away.

In January this year the Chair of the CSTD outlined the process that is already in train to convene a Working Group on Enhanced Cooperation, that will help to determine, one way or another, how the enhanced cooperation mandate will be expressed through the evolution of Internet governance arrangements. The next steps are up to us. Will we participate productively to provide a firmer institutional foundation for the representation of the public interest in global Internet governance arrangements, or will we dig in our heels and insist that those arrangements remain forever stuck in the same mould as in 1998?

Whatever our decision is, it may determine the future of the Internet. We should not underestimate the power that civil society can have to advocate for significant changes to global governance frameworks and mechanisms. The Mine Ban Treaty, for example, would not exist but for the efforts of civil society, and neither would the Disability Convention. In the more specific context of Internet governance, we should emulate the efforts of those who fought for the passage of the Marco Civil at the national level in Brazil, even though they ultimately did not succeed.

Just as much effort and expenditure may be needed to promote these proposals through networking, lobbying, outreach, research and capacity building as we expended fighting against SOPA, PIPA and ACTA. Targets for this advocacy work will include the CSTD Working Group, the IGF MAG, national governments, industry groups and the Internet technical community, as well as the broad community of Internet users who will be naturally suspicious about the evolution of Internet governance arrangements, and may be inclined to uncritically accept rumours of a "takeover of the Internet".

Conclusion

The battle to secure Internet rights and freedoms in a world of states is a hard one, but it is imperative that we undertake it on all fronts. Limiting ourselves to a negative, reactive approach is not sustainable – otherwise we will be forever fending off an increasing volley of threats, exhausting our limited time and resources, while the underlying interests that produce these threats are not being squarely addressed. Rather, we need to recognise the need for positive proposals that can advance these interests for the long term, and these proposals should be advanced at the global level just as much as at the national level.

Claims that there already is a comprehensive network of multi-stakeholder Internet governance institutions that stakeholders can join, rather than – for states – having recourse to the ITU, is a lie, and one that must be exposed as such so that it can no longer constrain the natural evolution of Internet goverance arrangements. It is indeed absurd to ask stakeholders to address policy issues of concern through multi-stakeholder processes, when those processes – outside of the technical – do not yet exist. Developing countries, in particular, will not fall for this, and the unmet need for the representation of their interests in Internet governance processes will not simply go away.

There is not only enough room, but indeed an urgent need, for the development of a more globally inclusive and democratic framework or mechanism to balance the interests of all governments and other stakeholders, outside of the realm of technical standards and Internet resource allocation and without impinging upon the work of existing multi-stakeholder bodies in those areas.

This evolutionary extension to existing Internet governance arrangements will, if it is sufficiently deliberative and transparent, expose and eliminate proposals from states that are based upon repression and control, since these would never pass muster in a multi-stakeholder environment – though at the same time, its authority should be limited to the development of principles, rather than their implementation or enforcement. It may also help preclude the emergence of new exclusionary processes such as ACTA and the TPP in the future, and even if it doesn't, it will at least drain them of their claimed legitimacy and arm us to defeat them more easily.

The "Internet freedom" meme is not adequate to encapsulate this imperative, and whilst bottom-up norm-setting in the absence of regulation is an important and continuing tradition of the Internet community, some form of political process to render this norm-setting formally legitimate is sometimes required in order to make sure that those norms are reflected as appropriate in national laws and industry practices. After all, rights as well as freedoms are important to Internet users, and at some point, democratic processes have to be allowed to develop these rights into public policy principles for the guidance of lawmakers, industry and technical community alike.

For as long as we remain blind to this, rejecting or ignoring proposals for the evolution of Internet governance arrangements on the false assumption that the status quo is sustainable, we risk assuring the ITU's future as the only global body capable of authoritatively developing globally-applicable public policy principles for the Internet.

Alternatively, we can collaborate on the design of a better, truly multi-stakeholder alternative to the ITU, that would allow all stakeholders to contribute their perspectives on important public policy issues in a deliberatively democratic forum that would balance the interests of the powerful with those of the powerless, and produce more thoughtful, just and inclusive recommendations that uphold the rights and freedoms of Internet users.

There is no template for this; it might involve the enhancement of the IGF's existing MAG, the development of a new adjunct body based on consensus democracy as I briefly sketched in the last section, or perhaps some other framework or mechanism that nobody has even thought of yet. I'm looking forwared to seeing what we can come up with. Are you in?


This is part 3 of a 3-part post that expands upon an essay originally published in Digital News Asia. Read back to part 1 or part 2.
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