There is a real opportunity here to influence the evolution of existing Internet governance arrangements in a way that would kill two birds with one stone:
At the same time we want to guard against the unguarded expansion of intergovernmental authority that could as easily sanction the violation of Internet users' rights and freedoms, as uphold them.
Because the mechanisms of democratic accountability are much weaker at the global level, we must be very cautious about encouraging the development of binding rules for the Internet at the global level, at least until very robust mechanisms of multi-stakeholder oversight are in place. This is not to say that it will never be justified – indeed, self-professed Internet freedom activists are amongst those now supporting a new global treaty at WIPO, that would allow copyright works that have been adapted for the use of the blind to be exchanged across borders. But that is a treaty that civil society was instrumental in initiating.
Much more often, limiting global governance to soft law, or principles, is the safer bet, as it provides more flexibility in the implementation of such principles at the national level, and much stronger text can be agreed than in the case of treaty text, which too often descends into legalistic wrangling. Policy-makers also tend to be far more open to the participation of public interest representatives in the development of soft law instruments.
The development of such soft global principles can provide guidance for national lawmakers, Internet engineers and businesses alike in developing policies that take into account the interests of those outside their borders who are likely to be affected by those policies. It can also ensure that countries are held to account for infringements of global norms, such the Universal Declaration of Human Rights. Indeed, the Universal Declaration itself began as a soft law instrument; only 30 years after its passage in 1948 did its provisions become binding in the form of the International Covenants (and other hard laws and treaties that it influenced).
What is needed, then, is a mechanism by which all stakeholders, including governments, the private sector and civil society, can collaborate on the development of non-binding principles for Internet governance that address their respective public policy concerns in a way that also upholds the rights and freedoms of Internet users.
It sounds like a pretty tall order – and of course, in many cases, the outcome of such a process will not be agreement. But, in fact, that is all the better – a failed attempt at developing global principles on a particular issue means that the issue will fall through for determination at a lower level, such as in national parliaments, or by the free market, or through technological means – which are more palatable to the cyber-libertarian anyway.
To give a practical example, if United States-based businesses are developing websites targetted to a global audience, it makes sense that there should be global baseline principles for online privacy that both those companies, and US regulators, can be guided by, and that those principles should be developed with the full participation of affected Internet users and businesses and their governments from around the world. If, in the end, a consensus cannot be reached, then we will continue to muddle through by handling the issue through a patchwork of national laws, technical standards and self-regulation – but perhaps with a little more insight into the perspectives of the other stakeholders than we had before.
In any case, the development of global standards it is already happening, with or without us. APEC has done a lot of work on cross-border privacy standards (without much civil society involvement), the OECD's work has already been noted, and the ITU has similar ambitions; it describes its upcoming May 2013 World Telecommunication Policy Forum (WTPF) as being "designed to foster debate, [and] build multi-stakeholder consensus expressed in the form of "Opinions" illustrating a shared vision to guide ongoing global ICT policies, regulatory and standardization efforts worldwide."
At the last meeting of the IGF in Baku, the Forum's Multistakeholder Advisory Group (MAG) was urged to put together a compendium of the many existing statements of Internet governance principles that others had developed. But although this is an important first step, it is unclear whether its MAG will allow the IGF to take this mandate up, let alone to allow the IGF to be used as a more inclusive forum for the actual development of such principles.
The record of the IGF's last seven years suggests not – which is why developing countries called the United States government's bluff when it finally about-faced last year and suggested that the IGF could be used to strengthen government collaboration in Internet public policy development, rather than establishing a separate framework or mechanism for this process.
Developing countries would have none of it, and so last December – in fact at the same time as the WCIT meeting was taking place in Dubai – the UN General Assembly in New York passed a resolution that was actually much more significant for the future of Internet governance, although it was overlooked by most. The resolution
Invites the Chair of the Commission on Science and Technology for Development to establish a working group on enhanced cooperation to examine the mandate of the World Summit on the Information Society regarding enhanced cooperation as contained in the Tunis Agenda, through seeking, compiling and reviewing inputs from all Member States and all other stakeholders... [and]
Requests the Chair of the Commission on Science and Technology for Development to ensure that the working group on enhanced cooperation has balanced representation between Governments from the five regional groups of the Commission, and invitees from all other stakeholders, namely, the private sector, civil society, technical and academic communities, and intergovernmental and international organizations, drawn equally from developing and developed countries;
This resolution didn't come out of the blue; in fact, it has been in train since 2005, in the final output document of the World Summit on the Information Society (WSIS), the Tunis Agenda. From the starting point "that there are many cross-cutting international public policy issues that require attention and are not adequately addressed by the current mechanisms", the Tunis Agenda called for creation of the IGF as a multi-stakeholder discussion forum to address these issues, together with a broader
process towards enhanced cooperation involving all stakeholders, proceeding as quickly as possible and responsive to innovation … [which would] enable governments, on an equal footing, to carry out their roles and responsibilities, in international public policy issues pertaining to the Internet, but not in the day-to-day technical and operational matters, that do not impact on international public policy issues.
The Tunis Agenda also specifies that this is to be a
transparent, democratic, and multilateral process, with the participation of governments, private sector, civil society and international organizations, in their respective roles. This process could envisage creation of a suitable framework or mechanisms, where justified, thus spurring the ongoing and active evolution of the current arrangements in order to synergize the efforts in this regard.
The principle, then, is clear enough – that the IGF should be a multi-stakeholder forum where Internet public policy issues can be discussed (and – though this part of its mandate has been forgotten – where recommendations to address those issues can be developed where appropriate), as part of a broader process that will also allow governments to carry out their "rights and responsibilities for international Internet-related public policy issues" in a more participatory way, perhaps through a new framework or mechanism that would facilitate this.
What remains lacking is the detail of how this broader process should be implemented. The Working Group on Internet Governance (WGIG), which was a multi-stakeholder group that advised the World Summit, produced a set of four options; three of which had some variant of a global Internet council, which would intercede in policy areas where national interests were impacted, but which fell outside the scope of existing intergovernmental arrangements (and were railed as a UN takeover of the Internet by US commentators). There was variation between these options on whether such a body would be UN-linked or not, and how other non-governmental stakeholders would participate in it.
In the years since then, surprisingly no new options to institutionalise the enhanced cooperation mandate have been seriously put forward, other than a 2011 proposal by the Indian government called the Committee on Internet Related Policies (CIRP), which built upon an earlier model put forward that same year by the IBSA trilateral grouping of Brazil, India and South Africa.
The CIRP would have been a 50-member governmental body, complementary to the IGF, with advisory bodies for civil society, the private sector, inter-governmental and international organisations, and the technical and academic community. The OECD's Information & Communications Policy Committee (ICCP) is structured along very similar lines, but is less geographically inclusive.
The CIRP too was shot down amidst claims of a UN takeover of the Internet. There were, true enough, significant problems with it, beyond its inherent structural bias towards governments. The biggest of these was that it proposed to go further than "ensuring coordination and coherence in cross-cutting Internet-related global issues" (which is needed), to also "coordinate and oversee the bodies responsible for technical and operational functioning of the Internet, including global standards setting" (which is not).
In any case, with the new UN mandate for a working group to consider the enhanced cooperation process afresh, we have the opportunity to improve upon the WGIG and CIRP proposals in order to strike a better balance between the interests of public and private stakeholders than either those proposals or the status quo, and in particular to enshrine the protection of Internet users' rights and freedoms as the primary objective of the process.