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Enhanced Confusion: The European Council and the Governance of the Internet

Wolfgang Kleinwächter

On November 1, 2014, the new European Commission started its work. One of the priorities of its new president, Jean Claude Juncker, is the digital agenda. The European Union wants to be a leader in the Internet world of tomorrow. Vice President Andrus Ansip from Estonia (some people spell the country name "e-stonia") and Commissioner Günter Oettinger from Germany will have special responsibilities to implement the big plans. Juncker was elected by the European Parliament, although the green light for his nomination came from the European Council. The European Council is the body where the prime ministers, presidents, chancellors and ministers of the EU member states are sitting together and making final decisions.

Commission, Council, Parliament: Who does What?

It is no secret that the relationships among the three main EU bodies — Parliament, Commission and Council — are not free from tensions. Juncker, a former prime minster of Luxembourg, has obviously his own ambitions and it remains to be seen, what the problems will be if it comes to policy development for key issues. One test case could be Internet Governance. A resolution on Internet Governance, which was adopted by the EU Council on October 17, 2014, did send already an interesting signal and raises the question how and where future EU Internet Policy will be made.

The fact that the European Council adopted a resolution on Internet Governance underlines that the topic is meanwhile a high priority issue for the EU. The EU Council supports a free, open, secure and unfragmented Internet, based on human rights and puts its authority behind the multistakeholder approach. This is good news. However, the text of the resolution is partly confusing and sends mixed messages which call for more clarification.

Let's start with the good news:

  1. Good news is that the European Council sees the Internet Governance definition — adopted by the 2005 Tunis Agenda of the UN World Summit on the Information Society (WSIS) — as the main basis for dealing with Internet related public policy issues. This working definition from Tunis is something like a soft law description of the innovative multistakeholder governance model. The main point of this definition is that the Internet can't be governend by one party alone but needs the involvement of all stakeholders who have to share policy development processes 
and decision making procedures.
  2. Good news is that the European Council supports NetMundial. NetMundial adopted a Universal Declaration of Principles for Internet Governance. Those principles are based on the Tunis Definition, but they specify in more than 20 paragraphs and subparagraphs how the Internet should be governed in a more detailed way. And while the Tunis Agenda (2005) was adopted by governments only, the Sao Paulo Declaration (2014) got support from all stakeholders: governments, business, technical community and civil society.
  3. Good news is that the European Council supports the Internet Governance Forum (IGF). The IGF was the main outcome from the Tunis summit. Within ten years it has evolved as the main global discussion platform for Internet related public policy issues. Some groups are still downplaying the IGF as a "talking shop", but the fact that the IGF does not negotiate language has helped to open minds and mouths to discuss controversial issues in a constructive way. Now, after one decade, people expect more concrete outcome from the IGF. Insofar it is good that the European Council supports the UNCSTD IGF Improvement Working Group recommendations.
  4. Good news is that the European Council supports the NTIA announcement to transfer the IANA functions to a multistakeholder mechanism. Constructive engagement of the EU in this transition can help to make the existing mechanisms more accountable to the global Internet community.
  5. Good news is that the European Council continues to support the idea to launch a Global Internet Policy Observatory (GIPO). This is indeed a missing link in the existing Internet Governance Ecosystem. While this system is decentralized and different issues are managed on different layers by different players, it would be useful to have one place to find all relevant information to understand what is going on in the various corners of the Internet. A GIPO would also fit into the more ambitious plans for an Internet Governance Clearing House, which is discussed by the IGF, the UNCSTD and NetMundial. Any concrete contribution, in particular to bring money where the mouth is, is welcome.

More Clarification is Needed

So far, so good, so clear. But there are some paragraphs in the European Council resolution which are not so clear.

  1. The resolution describes the WSIS process of enhanced cooperation for Internet Governance as a failure. Why? For a large part of the Internet community the process of enhanced cooperation since Tunis is seen as a success. The number of Internet users has tripled, new and innovative services and applications has emerged, the Internet is a main driver for economic growth and job creation, it has enabled millions of people to enjoy their individual human rights and ICANN has been step by step internationalized and is on its way to escape from US governmental oversight. Today there is much more communication, coordination and collaboration among the various governmental and non-governmental players in the Internet Governance Ecosystem than in 2005. This does not mean that there are no problems. There are problems with access, infrastructure deployment, security and cybercrime. There are problems with a misuse of Internet freedoms. There are problems with protection of privacy, freedom of expression and intellectual property. But the only way forward to solve those problems is to further enhance the cooperation among all stakeholders and to make this more efficient. To declare this process as a failure is confusing. What did the EU expect? It is correct that the compromise language of "enhanced cooperation" made its way into the Tunis Agenda because the EU and the US could not agree on the idea to establish an Intergovernmental Internet Council. Probably some EU member states expected that the agreed process of enhanced cooperation will lead — sooner or later — to such a new intergovernmental body. If this is the criteria for success, enhanced cooperation failed indeed. But to be frank: Did somebody miss such a council in the last ten years? Would the Internet world be better if we would have had annual meetings of 190+ governments? If governments want to raise their voice they can do it (and they do it) via various existing intergovernmental bodies as UNCSTD, UNESCO, ITU, ICANNs GAC or the annual UN General Assembly. There is no barrier for early engagement of governments in non-governmental organizations which deal with Internet issues which have public policy implications as the Regional Internet Registries, IETF or ICANN.
  2. A second confusing statement is the call for a NetMundial Europa. On the one hand all efforts to translate the NetMundial Principles and the NetMundial Roadmap into action on a regional level are welcome. On the other hand: Is there a need for more conferences? The new established global Net Mundial Initiative (NMI) has made clear, that it does not plan to compete with the IGF but wants to strengthen the IGF as the central annual meeting place for the global Internet community. The EU Council resolution leaves it open whether the proposed NetMundial Europe will compete with the European IGF (EURODIG). One could ask the question why the Bulgarian government, the co-host of the 8th EURODIG (scheduled for June 2015 in Sofia) did not flag the EURODIG plans in the EU Council meeting. To be frank, there is no need for new Internet Governance conferences. Four years ago the former British Foreign Secretary William Hague started the so-called London Process on Cybersecurity which has resulted in an annual Internet Governance conference, the next one will be in The Hague in April 2015. The Estonian government has started an initiative on Freedom Online with an annual Internet Governance Conference in Tallin. The former Swedish Foreign Minister Carl Bildt has started an initiative on Internet Governance and Development with an annual meeting in Stockholm. It is difficult to find out what another European Internet Governance conference could add to this full packed conference calendar. The best thing would be — if the European Council wants to have a NetMundial Europe — to organize this meeting at Day Zero before the EURODIG in June 2014 in Sofia. The EU ministers always lament on limited resources for travel. New conferences will enhance, not reduce travel costs.
  3. Confusing are also some statements with regard to ICANN. The European Council observes "that the programme of new gTLD by ICANN has shown the limitation of ICANN functioning and model" and it proposes a "global reform of ICANN" which would include also a reform of ICANNs mandate. What does this mean? The truth is that the new gTLD programme has entered new territory and everybody underestimated the complexity which comes with the allocation of simple words as top level domains. Does the European Council believe that the programme would have been better handled by an intergovernmental body? ICANNs GAC did have all opportunities to become engaged in the process. The truth is also that in this process a new level of enhanced collaboration among the governments and the various ICANN constituencies has emerged which has created enhanced procedures for a future dealing with more difficult challenges. With other words, regardless of visible weaknesses the progress which has been achieved is remarkable. There are no simple answers to complex questions. The only way forward is to stumble in the right direction by working together hand in hand. What is wrong with ICANNs mandate? ICANN has a limited technical mandate. Will the European Council further limit ICANNs mandate by taking away some of the functions and give it to somebody else? Or does the Council propose an extension of ICANNs mandate beyond the limited technical functions? Both options are bad ideas. The better way forward is to strengthen ICANNs accountability mechanism, to have more cross community collaboration within ICANN and to enhance an early engagement of governments in ICANN policy development processes (PDPs).
  4. Confusing is furthermore the proposal to define guidelines for the Internet standard setting organizations. This is difficult to implement. India made a similar proposal years ago in the UN General Assembly. During the IGF in Nairobi (2011) an interesting conversation between an IETF representative and the Indian government made clear, that a hierarchical oversight system is not the adequate solution. The better way is to participate in PDPs and RFCs from the very beginning to make sure that the "rights such as users data protection rights and security" (quote from the European Council resolution) are taken into consideration before rough consensus is achieved. The good thing is that this is exactly what the European Council proposes in another paragraph by calling for "early and truly inclusive upstream participation, review and comment."
  5. Confusing is finally that the European Council refers twice to the WSIS 10+ process and the planned high level event in December 2015 in New York without making the point that this process should contribute to the further enhancement of the multistakeholder Internet Governance model. As it stands now, the WSIS 10+ process will include a phase for multistakeholder "consultations" but leaves the final "negotiations" in the hands of an intergovernmental committee. It would have been good if the European Council would have made clear that its support of the multistakeholder approach includes also the proceedings which will lead to a final WSIS 10+ document in December 2015 in New York.

* * *

Update – 8 Dec 2014: On Thursday, November 27, 2015, the EU Council adopted the Internet Governance Resolution. The author wants to thank the EU Council that the final draft clarified the issues he has raised in the article above, based on the draft resolution circulated after the informal meeting of the EU council (October, 17, 2014). The final draft does not anymore qualify the process of enhanced cooperation as a "failure", it does not call for a renewal of ICANN´s mandate nor does it call for an oversight mechanism for the technical bodies like IAB or IETF. And it does not call for a NetMundial Europe. In contrary, it invited EU Member States and the EU Commission "to foster the multistakeholder model of Internet Governance" and to "support the adequate follow up to the issues identified at NetMundial in Sao Paulo". (Council conclusions on Internet Governance, Council of the
European Union, Brussels, 27 November 2014
)

By Wolfgang Kleinwächter, Professor Emeritus at the University of Aarhus He is a member of the Global Commission on Stability in Cyberspace, was a member of the ICANN Board (2013 – 2015) and served as Special Ambassador for the Net Mundial Initiative (2014 – 2016). Visit Page
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Share your comments

to my personal point of view,although EU Li Yan  –  Nov 03, 2014 6:57 PM PDT

to my personal point of view,although EU always is keeping "talking about" something related to the big picture of IG, until now I can't see any practical steps.

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