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NETmundial Multistakeholder Statement Concludes Act One of 2014 Internet Governance Trifecta

Philip S. Corwin

On April 24th the NETmundial "Global Multistakeholder Meeting on the Future of Internet Governance" concluded with the issuance of an eight-page statement. This non-binding document falls short of the "Magna Carta for the Internet" called for in an opening statement delivered by Tim Berners Lee, but it does set the stage for the other two major 2014 events that will affect the course of Internet Governance (IG) — the IGF meeting in Istanbul, Turkey and the ITU meeting in Busan, Korea.

Before turning to the final outcome document a separate and very important development that took place on the meeting's final day must be noted. That was ICANN CEO Fadi Chehade's statement at the IANA transition session that the plan facilitating NTIA's exit and the broader issue of improved ICANN accountability are "very interrelated", and that ICANN will publish a proposal for a consultation on improved accountability the following week — adding that the two processes will develop "hopefully together on the same time line". (Notwithstanding that announcement, for whatever reason the accountability process proposal had still not been published by May 3rd.)

While a welcome clarification, this statement was also an inevitable recognition that the need for periodic renewal of the IANA functions contract operated as a powerful tool to make ICANN adhere to the Affirmation of Commitments (AOC) signed with the US but providing global benefits in regard to ICANN accountability and transparency. Many parties both within and outside the ICANN community will never sign off on an IANA transition proposal unless it is accompanied by a robust and reliable ICANN accountability mechanism. Further, it is likely the IANA transition process proposed by ICANN earlier this month will encounter some stiff pushback from many members of its community because it proposes structural details (e.g., Steering Committee guidance and composition) that should arguably be left to the community to determine — and its proposed definition of what is and is not within scope for the discussion is far too narrow and tries to predetermine an outcome in which ICANN receives permanent possession of those IANA functions, with no other options permitted for discussion. Based on my interactions with members of the business and intellectual property communities, while they accept the likelihood that the U.S will terminate its IANA functions contract counterparty role, their message to ICANN right now would be "slow down and step back" — that is, stop trying to drive the process forward at breakneck speed, and restrict your role to creating a space where the ICANN and broader stakeholder community can come together and give the interrelated matters of IANA transition and continued ICANN accountability the detailed and deliberative consideration they deserve.

Turning to the final NETmundial document:

  • Its provision on the IANA transition makes clear that it will not be possible to confine the discussion to the ICANN community and the I-star technical organizations. Further, the call for "striving towards a completed transition by September 2015" demonstrates that there will likely be some considerable global outcry if a transition plan is not completed by then, notwithstanding recent NTIA and ICANN statements before the U.S. Congress that September 2015 is just a goal and not a deadline. Nonetheless, this is a matter so crucial that getting it done right is far more important than getting it done fast — and that includes completion of the tandem plan on enhanced and reliable ICANN accountability before any IANA transition plan is considered final and ready for review.
  • Its call for ICANN's globalization to result in "clearly implementable and verifiable accountability and transparency mechanisms" is welcome and again underlines the crucial role that the accountability plan will play.
  • The Internet Governance Principles contain no big surprises and are pretty much the DNS equivalent of "motherhood and apple pie". One exception is the sentence, at the Accountable bullet for IG Process Principles, which declares, "Governments have primary legal and political accountability for the protection of human rights." While that is true, it is likewise true that the greatest threats to human rights on the Internet come from certain repressive governmental regimes — and the document clearly ducked an opportunity to address that inconvenient fact. The recent advancement of Russian Internet censorship legislation, as well as China's actions to further remove and censor online content — justified by its Communist party's declaration that "there can be no Internet freedom without order" — just underline that sorry fact as well as the real dangers of any expanded role for governments in Internet governance.

In regard to the more important Roadmap for Future Evolution for IG, which will have bearing on the IGF and ITU events as well as other developments down the road:

  • The declaration that "enhanced cooperation as referred to in the [2005 WSIS] Tunis Agenda...must be implemented on a priority and consensual basis" and a later reference to the "Information Society as defined by the WSIS outcome documents", raises some real concerns, especially as that Agenda opined that "[t]he international management of the Internet should be multilateral" and not multistakeholder. We will all need to review that nearly ten year old, 20-page long document to figure out the full implications of its referencing in Sao Paulo — where Russia, China, India, and many other governments made clear that they had not yet evolved to a multistakeholder mindset. While the Tunis Agenda led to the establishment of the IGF, it is also replete with calls for UN leadership.
  • The references to adequate funding for "capacity building and empowerment", though understandable, stop short of advocating any digital divide "domain tax" levied on registrants as some called for at the Opening Ceremony. In this regard, the keynote remarks of Nnenna Nwakanma, which concluded with a paean to Moscow-dwelling Edward Snowden, are now available. They state that social and economic justice lead to the conclusion that "we need to start considering the Internet as public commons" and continue:

    How do we ensure that resources are mobilized and maintained for a viable Internet Governance mechanism? The question is not just at the global level, but also at regional and national levels. Whose resources are we going to commit? My leaning is that the Internet should be able to provide resources for its own governance. Maybe, part of the domain name fees could be reinvested here. (Emphasis added)

While ICANN may have to expend some resources to participate in relevant meetings and thereby contribute to the Internet governance ecosystem, the fees it collects from domain registrants via registrar and registry Internet intermediaries should be used solely to fund its own role as technical manager of the DNS and for related policy matters. Having ICANN go beyond that narrow remit and redistribute registrant fees to global, regional, or national IG activities would convert it into a multinational tax-and-spend organization. That is not only inappropriate but would be accompanied by a large potential for corrupting digital cronyism. This is an idea fraught with danger that bears continued close scrutiny.

  • The call for a strengthened IGF is probably both inevitable and welcome, That Forum is a known quantity with established procedures, and it is better to enhance its activities rather than reinvent the wheel with new organizations or meetings. Nonetheless, as demonstrated by the heavy participation of governments at NETmundial, the pending US withdrawal from IANA counterparty status and the likelihood that the IGF will evolve into a decision-making entity will almost surely attract much more active participation by governments in future IGF activities. Whether this works out well or badly remains to be seen.
  • The identification of "Jurisdiction issues and how they relate to IG" as something to be discussed beyond NETmundial bears close watching. A separate group exploring that is looking to have national laws "co-exist" in cyberspace — whether that can be accomplished without diluting the fundamental rights and freedoms of Internet users residing in nations with strong protections is uncertain.

The official U.S. statement issued upon NETmundial's conclusion declared that "hundreds of stakeholders from around the world convened to discuss and agree upon a shared vision for the multistakeholder model of Internet governance that seeks to further develop an increasingly open, transparent, inclusive, and responsive system" and that its Multistakeholder Statement "endorsed the transition of the U.S. Government's stewardship role of IANA functions to the global multistakeholder community, consistent with our stated principles". The U.S. surely breathed a sigh of relief that the meeting did not blow up in acrimony — and that the final document makes no direct reference to the NSA data collection program, stating more generally that, "Mass and arbitrary surveillance undermines trust in the Internet and trust in the Internet governance ecosystem. Collection and processing of personal data by state and non-state actors should be conducted in accordance with international human rights law."

The U.S. statement also recognizes that NETmundial was just the opening event in this year's IG passion play, stating, "NETmundial marks one of many critical global discussions planned for the multistakeholder community this year. The U.S. Government supports these discussions and looks forward to working collaboratively with the global community to strengthen the Internet governance structure, enabling broad participation from governments, businesses, civil society, technology experts and academia." The fact that the U.S. delegation was led by White House Cybersecurity Coordinator Michael Daniel just underlines that IG is now seen as a top tier, high-stakes issue by the Obama Administration.

While NETmundial made incremental progress, it failed in one central aim. ICANN claimed that Brazil President Dilma Rousseff had been converted to a multistakeholder model advocate, and that holding this meeting in Brazil could bring the other BRIC nations along. But President Rousseff adopted a half-pregnant position in Sao Paulo, making the politically expedient declaration that there is "no opposition" between the multilateral and the multistakeholder approaches. One interpretation of this position is that governments must engage in a multilateral process in regard to IG, but then bring their consensus views to a broader multi-stakeholder process. But that presumes that governments — with their ability to make and enforce laws — will be content to just be equal stakeholders.

There is reason to question that assumption. At NETmundial Russia, India, and China, along with other developing world nations, all strongly reiterated their support for a UN-led, government centric approach to Internet governance. Those nations collectively comprise about half the planet's population and the great majority of the next billion Internet users. And a more decisional IGF, along with the UN-affiliated ITU, may provide far more compatible venues for their goals than a one-off NETmundial meeting.

It is quite likely that NETmundial has set the stage for greater governmental involvement in IG issues. That is worrisome given recent developments that almost appear to be deliberate rebukes to the "Spirit of NETmundial" . The week following NETmundial Russia's parliament passed three bills that —

[I]mpose strict control over disseminating information on the Internet and online payments, and toughen punishment for terrorism and extremism. The one that sparked the most concern effectively equates popular bloggers with media outlets, subjecting them to substantially greater regulation and legal liability.

The bill would require bloggers with 3,000 or more page-views a day to reveal their identities, fact-check their content, not disseminate extremist information or information violating privacy of citizens, and abide by the rules of pre-election silence. Human-rights activists say bloggers are ill-equipped to fulfill such demands…

"Today, the Internet is the last island of free expression in Russia and these draconian regulations are clearly aimed at putting it under government control," Hugh Williamson, Europe and Central Asia director at Human Rights Watch, said.

Social-networking sites, blog hosts and other "organizers of disseminating of information on the Internet" may also be affected, as the bill requires them to store data on popular users' activity online for six months for potential use in police and other official investigations.

While such draconian actions are hardly a surprise from a post-Crimea takeover, Ukraine-threatening Russia, even more worrisome are recent actions by Turkey, host to ICANN's recently established Istanbul hub. There, Prime Minister Erdogan's ruling political party recently passed laws

[L]etting him shut down websites without a court order and collect Web browsing data on individuals. He put a veteran spy in charge of Turkey's telecommunications regulator. He also has blocked dozens of websites. Twitter Inc. was banned for two weeks in late March and early April, and Google's YouTube video-sharing service has been dark since March 27. An opposition newspaper columnist and academic was sentenced Tuesday to 10 months in jail for a tweet that insulted the prime minister, while 29 defendants are on trial on allegations that include using tweets to organize protests and foment unrest last year… Mr. Erdogan's shake-up, a rapid-fire response to a power struggle with political enemies, has left Internet companies and government officials from Washington to Brussels worried that Turkey could become a template for other countries where leaders want to rein in the Internet without cracking down with as much force as China or Iran.

In retrospect, NETmundial may be regarded as the event that brought governments into the room with business, civil society, academia, and the technical community to chart the future of Internet governance. Whether the collective private and civil society sectors can truly be "multi-equal" with state power over the long run remains to be seen. Nonetheless, in a recent blog post ICANN CEO Fadi Chehade called for an alliance or coalition to expend substantial efforts on increasing governmental engagement on IG —

I am personally ready to work tirelessly on coalescing governments, private sector and civil society to operationalize the NETmundial roadmap. An alliance or a coalition, fueled by the unforgettable spirit of NETmundial, and united by its principles, should without delay focus on the practical implementation of the NETmundial roadmap elements, specifically:

• Enable innovative and practical mechanisms to map Internet Governance issues to existing solutions. Where no solution is available, the mechanisms should dynamically fuse institutions and experts to address the issue effectively with participation from all stakeholders.

Support the establishment of national Internet governance structures, enabling collaboration between government, private sector, and civil society members to produce local policy models/recommendations and best practices.

Empower participants from governments, private sector and civil society -especially in developing regions — to actively engage in the distributed Internet governance ecosystem. The empowerment should come in the form of effective training, tools, and ready access to expertise. (Emphasis added)

It is not clear whether the envisioned alliance or coalition would be yet one more organization to be added to the existing multiplicity of Internet groups, including the 1Net organization established by the I-Star technical organizations to partner on NETmundial. There's a strong possibility that national Internet governance structures established in such nations as China, Russia and Iran would be dominated by participating officials and that this might actually stifle the ability of the private sector and civil society to support multistakeholder as opposed to multilateral approaches. There are also valid questions whether ICANN, with its narrow remit as technical manager of the DNS — and an already full plate of issues including the ongoing rollout of new gTLDs and related technical challenges such as name collisions, and the task of creating forums in which the broad community can address the IANA transition and enhanced ICANN accountability — has the mandate or the bandwidth to expend tireless efforts on coalescing diverse parties around the NETmundial roadmap.

But, for better or worse, the future of Internet Governance would appear to include much more engagement by governments, many of which are disposed to multilateral suppression of Internet freedom. So, while a bullet was dodged in Sao Paulo, the real drama and the foremost challenges lie ahead.

Note: An earlier version of this article appeared at the website of the Internet Commerce Association.

By Philip S. Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm. He also serves as Of Counsel to the IP-centric law firm of Greenberg & Lieberman, and as Strategic Advisor to the ICANN Sherpa DNS-focused consultancy. The views expressed in this article are solely his own.

Related topics: Censorship, ICANN, Internet Governance, Law, Policy & Regulation

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