Making enemies at the IGF? That controversial part of my paper

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Making enemies at the IGF? That controversial part of my paper
User: terminus
Date: 27/9/2011 8:09 am
Views: 4968
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Steve DelBianco has attacked me on CircleID for "damning the same private sector motivations that produced the most democratizing technologies the world has ever known." He claims that I have "accused the business and technical community of 'complicity' in blocking" my alleged agenda "to get the IGF to oppose legal or technical protections for copyrighted content."

This is quite a remarkable allegation, since I have never held or put forward such an agenda, nor can I fathom why he should think that I have. I do advocate for more balanced copyright laws as part of my work on Consumers International's Access to Knowledge project, but have never suggested that the IGF ought to intervene directly in issues of copyright law. The IGF's mandate precludes it from duplicating the work of WIPO and the WTO in this area, and rightly so.

Neither do I consider myself an enemy of private enterprise. In fact, I myself am a former Internet business owner and manager. My criticisms of the private sector were not made in the abstract, as some kind of anti-capitalist rant. They were as to a targetted programme of opposition to basic needed reforms to Internet governance processes, demonstrable through a long history of interventions at the IGF and elsewhere, that have muffled civil society's voice in Internet policy development.

Beyond this mere intransigency on Internet governance reform, I also criticised some specific practices of certain private sector actors that have impacted directly upon the human rights of Internet users. Whilst DelBianco asserts that "Only governments can block content by law, or imprison people who defy their orders", at least governments are required to comply with the rule of law. Businesses are not, and as such they can, and some do, flout human rights with impugnity.

But judge for yourself: here is the passage that he actually objected to, excerpted from my paper Arresting the decline of multi-stakeholderism in Internet governance. What do you think?

Worsening the decline of multi-stakeholderism has been the business and Internet technical communities' indifference at best, and hostility at worst, towards multi-stakeholder models that would empower broader civil society. This has taken an active form in the submissions that these communities, notably through the ICC and ISOC, have consistently put forward arguing against the reform of the IGF to enable it to develop the capacity to produce policy recommendations, and against institutional reforms in relation to the enhanced cooperation process, which they have characterised as unnecessary in light of their own internal efforts at cooperation with other stakeholders.

By the same token, the private sector and technical communities were not seen to raise any objection to the exclusivity of the e-G8 summit, nor to the release of the OECD Communiqué without civil society's endorsement, they have actively participated in other Internet-related policy discussions from which civil society was excluded or absent (such as the ACTA negotiations), and have proactively organised other such discussions (including a series of meetings on intermediary liability, co-hosted by ISOC and WIPO). The result has been to put multi-stakeholderism out of balance in those institutions, and to ensure that the only institution where it is more balanced – the IGF – has no capacity to efficiently channel civil society's views to policy makers.

The motivation of the private sector in particular in perpetuating this imbalance is not difficult to understand, nor is it even particularly objectionable, since the private sector has no interest in furthering the public values that true multi-stakeholderism would promote, ahead of its own power and profits, which could be threatened by further democratising governance processes. Indeed, it has already been noted that governments have almost the same complaint as civil society about multi-stakeholderism imbalance in the context of ICANN, where governments are institutionally disempowered relative to the other stakeholders. The technical community, to the extent that it is not composed of private sector actors, has a slightly different but also understandable interest in opposing governance reform, in it has historially enjoyed considerable independent authority over technical Internet governance, and naturally wishes to cede as little of that authority to governments or broader civil society as possible.

More objectionable, however, are cases in which private sector actors, in particular, have taken active steps to implement Internet governance policies extra-legally; that is, where such policies have been developed outside of democratic (let alone multi-stakeholder) fora, and are implemented without public oversight. A clear example is the case of the withdrawal of services by financial intermediaries to Wikileaks, thereby crippling its ability to raise funds to support the provision of access to leaked government and corporate documents on matters of public interest. This decision was made in an environment of strong political pressure, but where no legal ruling against Wikileaks or its representatives had been, or yet has been, made regarding the legality of its activities.

Another example of the private sector straying into areas of public policy that should be subject to democratic and (at least outside of the domestic context) multi-stakeholder oversight, is in the private agreements reached between some Internet service providers (ISPs) and representives of content owners, to implement a graduated response or “three strikes” regime whereby users of the Internet can be disconnected or otherwise penalised for alleging sharing copyright content. The UN Human Rights Rapporteur has expressed the view that such a regime impacts upon fundamental human rights such as the right to freedom of expression, and the Council of Europe that basic Internet access has become an essential public service. In this context even the OECD Communiqué, in a passage to which CSISAC objected, limited the circumstances in which such a regime could be developed:

governments may choose to convene stakeholders in a transparent, multi-stakeholder process to identify the appropriate circumstances under which Internet intermediaries could take steps to … assist rights holders in enforcing their rights or reduce illegal content.

Falling into the same category are agreements for the illegal filtering or interception of Internet usage by private government contractors, such as the infamous HBGary Federal, and perhaps also the cooperation of domain name registrars to effect the “seizure” of websites at the direction of a US government agency without legislative mandate or a prior hearing.

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