In 2015 we saw many agreements on Internet Governance. 193 Governments agreed in the UN General Assembly on the WSIS 10+ Outcome Document. They agreed to extend the mandate of the IGF for ten years. They agreed to strengthen the multistakeholder approach. And they agreed to make more efforts to bring the next billion users online until 2020.
The UN Group of Governmental Experts (GGE) agreed on a number of confidence building measures to strengthen cybersecurity. Governments agreed that countries have the same rights and duties under international law offline and online. The UN Human Rights Council agreed to establish a new rapporteur on privacy in the digital age. US president Obama and China's president Xi agreed to stop economic espionage. And ITU and ICANN have agreed to move towards a more friendly collaborative relationship.
Within ICANN, the IANA Stewardship Transition Coordination Group (ICG) agreed on the details how to manage the transition of the IANA functions. And even the much more controversial Cross Constituency Working Group on Accountability (CCWG-ACC) agreed in Dublin (October 2015) on a so-called "Designator Model" to enhanced accountability mechanisms within ICANN.
So many agreements in 2015! Isn't this good news? After years of fierce controversies, could somebody have expected that — in a space which is normally dominated by conflicts, tensions and mistrust — the political will to reach rough consensus prevailed? Will 2016 now became the year of Internet peace?
The Bad News
The bad news is that the good news is only one side of the coin. The majority of the agreements are nothing else than "agreements in principle". With some exceptions they do not really solve problems. The devil is in the detail. And the documents which enabled governments in 2015 to agree on language disguise a fundamental disagreement on substance.
The different political and economic interests of governments and corporations, diverse cultural and social values, historical experiences of individual countries and the controversial ideologies of political leaders did not disappear in 2015. And they will not disappear in 2016. The risk is high, that the Internet in 2016 will mirror the global political trends of growing confrontation, radicalization and re-nationalization.
The best we can hope for in 2016 is that we can secure an environment which will allow the Internet Governance ecosystem to continue to innovate, to grow, to evolve, to enable and to keep extreme and polarizing positions under control. This would mean that 2016 could become a year with a mix of cooperation and confrontation. And this would not be a bad thing.
One of the key questions of the 2016 Internet Governance agenda will be whether the Internet remains the open, free and unified network as we know it since the invention of the TCP/IP protocol in 1975. There are growing tendencies to split the Internet into smaller parts: into national Internet segments or special Internet economic zones. National firewalls or wallet gardens could lead to a fragmented Internet.
25 years ago the removal of physical borders for the free flow of ideas and information did open the door for an incredible wave of innovation, economic growth, job creation, social activities and enhancement of individual rights and freedoms. Today, the re-erection of frontiers in the borderless cyberspace implies the risk to reverse such a development with could lead to unpredictable economic downturns, new social unrest and irrational political reactions.
This is a complex issue. On the one hand it is a natural process that the ongoing growth of complex systems reaches a moment, where sub-systems emerge on top of the basic infrastructure and that such sub-systems develop their own life. 25 years ago the Internet had less than 4 million users, now it has more than 4 billion. In 1991 there were no search engines, no social networks, no apps. Now search engines and social networks have billions of users and we have tens of thousands of new services and applications. Such a complexification has consequences.
Under certain circumstances fences around sub-systems can be justified or are even needed to secure the functionality of specific services. There can be good reasons for introducing checkpoints to get the dark side of the Internet under control.
On the other hand, the risk is high that a re-bordered Internet will dwindle down innovation, reduce market opportunities, block social interactions and introduce censorship and mass surveillance.
Governments and the whole Internet community has to fight the evils of cyberspace: terrorists, criminals, hate preachers, pedophiles. But it has to be done in a balanced way. One has to avoid that fundamental individual rights and freedoms are undermined. And one has to avoid that economic opportunities for innovation without permission and the low entry barriers for newcomers with creative business models are not blocked. The medicine to fight the various Internet diseases has to be administered in a way that it does not kill the patient. And it has to be done in a cooperative way with the involvement of all stakeholders in their respective roles and on equal footing.
Spaces for Confrontation
Let's have look into the 2015 Internet Governance agreements to find out where we can expect more agreements or disagreements in 2016. There will be three main battlefields in the Internet Governance Ecosystem: Cybersecurity, Cybereconomy and Human Rights. And at the moment there are more questions than answers.
Governments agreed in the GGE that states have the same rights and duties under international law offline and online. But they could not agree what does this mean for war and peace. In the offline world, a war is defined by the UN. And it is the UN Security Council which has some competences if international security it threatened. Chapter 7 of the UN Charter gives states the right to self-defence in cases of an attack. Does this apply for a cyberwar? There is no definition, what a cyberwar is. A war in the offline world means death, damages and destruction. Neither the attack against Estonia in 2007 nor the Stuxnet case in 2010 produced death and destruction. But what will happen if we see new forms of cyberattacks? Will states fire back? Do they have a right for pre-emptive strikes to prevent death and destruction?
The GGE agreed on a set of confidence building measures in cyberspace (CBMCs). But there is disagreement with regard to a legal binding instrument for cybersecurity. The member states of the Shanghai Cooperation Organization (SCO) want to have a new treaty under the UN. The US, the EU and other Western countries want to strengthen the existing Budapest Convention on Cybercrime from 2001, which has more than 50 ratifications but is not accepted by countries like India, Brazil China and Russia. Is it possible to enhance CBMCs in a way that the divergent positions can be bridged?
And what about espionage? China and USA agreed in September 2015 to stop economic cyberespionage. But what about political cyberespionage, what about mass surveillance? In paragraph 51 of the WSIS 10+ Outcome Document the 193 UN member states agreed that they will "review their procedures, practices and legislation regarding the surveillance of communications, as well as their interception of personal data, including mass surveillance". This is language from the NetMundial Declaration (Sao Paulo, April 2014). This is a useful commitment. But what does it mean in practice? What will happen if the review leads to controversial results? Who decides what good or bad surveillance is?
All states have similar interests to find terrorists in cyberspace. Insofar there is some space for a targeted cooperation. But who is a terrorist? There is no common definition. And there is no consensus how to include the technical community, the private sector and civil society into governmental strategies towards enhanced cybersecurity. The WSIS 10+ Outcome Document recognized "the important roles and contribution of all stakeholders" in efforts to build confidence and security in cyberspace. Such a collaboration across different cultures and ideologies needs a high level of trust both among governments and stakeholders. But trust is missing in today's cyberpolitics.
WSIS 10+ agreed that there is a need to bring the next billion Internet users online. There is broad agreement that the development of a digital economy is key for economic growth and job creation. The Boston Consulting Group has found that countries with a developed Internet economy have higher growth rates and less unemployment than countries with an underdeveloped Internet economy.
The last 15 years we saw the emergence of the Silicon Valley giants in the US: Google, Facebook, Apple, Amazon & Co. What we see now is the emergence of the Digital Silk Road giants from China: Baidu, Weibo, Alibaba, Tencent & Co. There are also some big players from other regions, but the global digital economy is more and more dominated by a US-Chinese digital race. "Global cyberspace, like the post WWII system of international relations, is bipolar, not structured around Washington D.C. and Moscow, but articulated around the U.S. and China" wrote the former president of the European Commission, Romano Prodi, recently in the Huffington Post.
There is a growing economic competition in the digital field. Regional trade pacts as TTP and TTIP do not include so far a special chapter on digital trade, but some paragraphs cover online protection of intellectual property and personal data and also domain name dispute resolution in the ccTLD space. Trade negotiations are rather different from Internet Governance discussions. TTP and TTIP are secret negotiations by governments only. Internet Governance issues are discussed in open and transparent spaces with the participation of all stakeholders on equal footing. If the trade world and the Internet world come together, do we will see the next "clash of cultures"? What will happen if the WTO starts negotiations on a Digital Trade Pact behind closed doors and without the involvement of non-governmental stakeholders?
After the decisions by the European Court of Justice on the Safe Harbor agreement and the right to be forgotton, privacy and cross border data flow is not anymore primarily a human rights issue. It is now also an economic problem. Strong data protection could lead to economic protectionism. Efforts to keep local data in a country could contribute to a fragmented Internet. What would be the long-term effects of digital protectionism? And who could stop an emerging new cat-and-mouse-game of bridging, tunneling or bypassing new legal barriers for the free flow of bits and bytes?
3. Human Rights
Governments agreed in the WSIS 10+ Outcome Document that the information society has to be based on human rights. They reaffirmed the UN resolution 69/166 that "the same rights that people have offline must also be protected online". Governments agreed to link the WSIS process to the Millenium Development Goals (MDG). But if it comes to the right to freedom of expression there is no agreement what "illegal content" is. And what about the damage of individual privacy if governments introduce mass surveillance to fight criminals and terrorists?
There is a broad agreement, that access to the Internet can be seen as a human right. But there is just lip-service if it comes to put money on the table to finance enhanced access. In 2015, more than 80 percent of the developed world was online, but only 34 of the developing countries. Nearly four billion people are still offline. In the WSIS 10+ Outcome Document 193 governments recognized that bridging the digital divide "requires greater und sustainable investment" (para. 40), that "private investment" is "critical" (para. 43) and that there is a need "for an ongoing evaluation of new innovative financing options" (para. 45). How concrete is this? Doesn't it sound like "Waiting for Godeau"?
Places for Cooperation
In 2016 the two main Internet Governance conferences will take place in Mexico. In June 2016 Cancun will host the OECD Ministerial Meeting on the Information Economy which has Cybersecurity, Data Protection, Internet of Things, Digital Trade and other Internet related public policy issues on its agenda. An in November 2016 Mexico hosts the 11th Internet Governance Forum (IGF). This is the first IGF after the UN has extended its mandate until 2025.
1. OECD & IGF
The previous OECD Ministerial Conference on the Information Economy (Seoul 2008) was a milestone in promoting the Multistakeholder Modell within an intergovernmental organization. The OECD has now Advisory Committees where the technical community, businesses and civil society are self-organized and make recommendations to the governments of the OECD member states. There is not always agreement as it was seen in the process to draft OECD Principles for Internet Policy Making (2012). But the input from non-governmental stakeholders has enriched the discussion. And one can expect that the OECD is deepening such a multistakeholder approach with the forthcoming Cancun meeting.
The IGF, with a clear perspective until 2025, has now the opportunity to be innovative and to move forward. WSIS 10+ reiterated the IGF mandate as it was agreed upon in the Tunis Agenda in 2005. But it also encouraged the IGF "to show progress on working modalities" (para. 68). This is a good support for recent efforts by the Multistakeholder Advisory Group (MAG) to intensify what is called "Inter-Sessional Work" and "Tangible Output". The 10th IGF in November 2015 in Brazil saw already some concrete results: a policy paper on "Connecting the Next Billion", six documents with recommendations from "Best Practice Forum" and eight "rolling documents" from "IGF Dynamic Coalitions" covering issues from spam to the Internet of things, from network neutrality to online abuse and gender based violence against women and girls in the Internet.
There is an ongoing agreement that IGF should not become a policy making body. But the free and frank exchange of ideas and information among all stakeholders on equal footing within the IGF framework enables decisions makers to qualify their policies. And it paves the way for the emergence of innovative mechanisms as it was demonstrated in 2014 by the Net Mundial Conference in Sao Paulo.
And what we will also see is a closer linkage between the annual global IGF and the more than 50 regional and national IGFs which has emerged over the years. Those IGFs have a much greater procedural flexibility. As an example, EURODIG, the European IGF, has adopted so-called "messages" as a tangible outcome since its very first meeting in Strassbourg (2008). The 9th EURIDIG will take place in June 2016 in Brussels, co-hosted by EURID, the TLD registry for the .eu Domain, and the European Commission and it will produce another concrete output.
2. The United Nations
A main place for Internet Governance discussion in 2016 will be the UN Commission for Science and Technological Development (UNCSTD). The role of the UNCSTD was strengthened by WSIS 10+. The UNCSTD has now to report not only via the ECOSOC to the annual UN General Assembly, it has also a mandate to cooperate with the High Level Political Forum of the 2030 Agenda for Sustainable Development. And it got a mandate to reactivate the Working Group on Enhanced Cooperation (WGEC) which has to produce a report for the 72. UN General Assembly in 2017. The 19th UNCSTD session is scheduled for May 2016 in Geneva. The WGEC has to be re-activated until July 2016. The interesting thing is, that the WGEC was a truly multistakeholder body where all members participated on equal footing. The UNCSTD is still a purely intergovernmental body. It is true that in the past, the UNCSTD has opened the doors for non-governmental stakeholders a little bit. But there are still high procedural hurdles for non-governmental stakeholders, in particular if the discussion moves from the UNCSTD to the ECOSOC and the UN General Assembly (UNGA).
In the 71st UN General Assembly, which starts in September 2016, there are now three committees which will discuss Internet related issues. The report of the GGE in the 1st committee (security), the report of the UNCSTD in the 2nd committee (economic and social development) and the report of the Special Rapporteur on privacy in the digital age, Joseph Cannataci in the 3rd committee (human rights). The first draft of Mr. Cannataci's report will be presented to the spring meeting of the UN Human Rights Council which starts end of February 2016 in Geneva.
Another UN body, the United Nations Group on the Information Society (UNGIS) got also an extended mandate from WSIS 10+. UNGIS is a network of 29 UN Organizations, including ITU, UNESCO, WIPO, FAO, UPU, ILO, UNDP, WTO, UNCTAD, IAEA and others. It coordinates the information society efforts within the UN system.
It has to be seen, what those UN bodies will contribute to the Internet Governance debate. Last year, UNESCO organized an important conference "Connecting the Dots". The ITU organized its annual WSIS Forum in May and will do so again in May 2016. After ITU made its peace with ICANN one can expect more collaborative actions. Hopefully this spirit will also dominate the work of the new ITU Study Group 20 which will deal with the "Internet of Things" and will soon produce a first report.
3. Summit Meetings and other Intergovernmental Bodies
One can also expect that the agendas of the big annual summit meetings of world leaders will include issues like cybersecurity, digital trade and human rights. The G 20 meeting will be hosted by China and is scheduled for September 2016 in Hangzhou. The G 7 meeting is planned for May 2016 in Kashiko Island in Japan. The BRICS countries want to meet in summer 2016 in India. And the heads of states of the Shanghai Cooperation Organization (SCO) will have their meeting in fall 2016 in Tashkent in Uzbekistan.
There is nearly no intergovernmental organizations left anymore which does not discuss Internet related issues. This includes also regional organizations as the Council of Europe, the OSCE, the OAS, APEC, the African Union and others.
4. ICANN & IETF
In the Internet Governance Microcosms, the management of critical Internet resources, the completion of the IANA transition and the further development of the new gTLD program will dominate the 2016 agenda. During ICANNs 54th meeting in Dublin in October 2016 the two groups — the ICG and the CCWG-ACC - agreed in principle how to move forward with the IANA transition. There will be a new body, the Post Transition IANA (PTI), a customer standing committee and an independent review process. And the "Designator-Model" will strengthen the power of the ICANN community vis-à-vis the ICANN Board to bring a higher level of accountability and checks and balances to the complex ICANN machinery.
End of January 2016 the ICANN Board, after it has received the full packages from the two groups, will send the proposal to the National Telecommunication and Information Administration (NTIA) of the US Department of Commerce. The US government will need a couple of weeks to review the proposal and to check whether the new mechanisms meet the criteria of the NTIA announcement from April 2014 to allow the termination of the contract which expires September 30, 2016. But also the US Congress wants to have a look into the final package, although a formal Congressional approval is not needed. If everything goes well, ICANN could get a green light to start with implementation in June or July 2016 to be ready for overtaking all IANA functions from October 1, 2016 onwards.
But there is a related problem. Summer 2016 is the time, when the US presidential election campaign is in full swing. And election campaigns in the US are political minefields. If the IANA transition is pulled into political controversies among Democrats and Republicans, the whole project could be delayed and another extension of the IANA contract would be needed. The present contract can be extended until September 30, 2019. With other words, there is no risk for the security or stability of the Internet. But one can take it for granted, that a failure of the IANA transition will deliver explosive munition for some governments in the re-activated Working Group on Enhanced Cooperation (WGEC).
A completion of the IANA transition would be also useful for ICANN itself. There is an urgent need that ICANN — under its new CEO - is concentrating its limited energies and capacities on its core business: the management of names and numbers. The new gTLD program, introduced in 2012, was a revolution for the Domain Name System (DNS). On the one hand the new gTLD program is a big success. Nearly 1000 new gTLDs have been delegated in the last two years. However, the new gTLD market is still in its infant stage and less than 10 million registration in the new gTLD space is below the high expectations. ICANN's new established "Competition, Consumer Trust and Choice Review Team" (CCT-CRT) will have a lot to do. A report is expected at the end of 2016. A lot to discuss during the three ICANN meetings in 2016 (March in Marrakesh, June in Panama and November in Puerto Rico).
Another interesting challenge in the Internet Governance microcosm will be how standardization will move forward. The IETF has recognized in the last years that the technical aspects, they discuss and regulate, have far reaching political, economic, cultural and social implications. The IETF debate on privacy in mail protocols has opened the door towards a more complex approach towards the next generation of Internet protocols. Food for thought for the three IETF meetings in 2016 (April in Buenos Aires, July in Berlin and November in Seoul).
5. Multistakeholder Platforms
Next to the many intergovernmental and international units, there are more and more multistakeholder platforms which contribute to global Internet policy making. There are at least six platforms where we can expect in 2016 innovative and creative input.
6. Other Mechanisms
In the last years we did see also the growth of a large number of projects and programs for Internet education, knowledge production, research and documentation. One can only hope that this large body of knowledge, which is now available and will grow in the coming years, will be used by policy makers, business leaders, technical experts and civil society activists to find a rational approach to the large number of controversial issues which are waiting for a solution on the 2016 agenda for Internet Governance.
Among such programs are, inter alia
20 Years after the Declaration of Cyber-Independence
Twenty years ago, on February 8 1996, John Peter Barlow published his "Declaration of Cyber-Independence in Davos/Switzerland. This was five years after the invention of the World Wide Web and in the early days of the information society.
Full of emotions the famous rock singer and activist of the Electronic Frontier Foundation (EFF) declared: "Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. ... We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity. Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here. ... We will create a new civilization of the Mind in Cyberspace. May it be more humane and fair than the world your governments have made before."
Today we know that John Peter Barlow was partly right and partly wrong. He was right, that the Internet changes the world. But he was wrong that the Internet creates a new world with a new civilization. With all the new devices on our fingertips, we are still living on our old planet. And when the UN recognized that "the same rights that people have offline must also be protected online" one can add in 2016 that "the same problems that people have offline they have also online".
By Wolfgang Kleinwächter, Professor Emeritus at the University of Aarhus. Wolfgang Kleinwächter is a Professor Emeritus from the University of Aarhus. He was a member of the ICANN Board (2013–2015) and served as Special Ambassador for the Net Mundial Initiative.
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