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The UN Panel on Digital Cooperation: Reinventing the Wheel or Innovating Internet Policy Making?

Wolfgang Kleinwächter

The new High-Level Panel on Digital Cooperation (HLP.DC), appointed by UN Secretary General Antonio Guterres, will have its first face-to-face meeting in New York, September 25-26, 2018, just before the beginning of the 73rd UN General Assembly. The Panel, co-chaired by an American woman, Melinda Gates from the Microsoft Foundation and a Chinese man, Jack Ma from Ali Baba, "is expected to raise awareness about the transformative impact of digital technologies across society and the economy, and contribute to the broader public debate on how to ensure a safe and inclusive digital future for all, taking into account relevant human rights norms." Its final report will be tabled in May 2019.

To paint a picture, how the "digital future for all" should look like, is a big challenge. There is obviously an opportunity that the panel concludes with some exciting new political innovations on how to stabilize a peaceful cyberspace which enables digital trade, sustainable development as well as economic growth and respects human rights. But there is also a risk that the outcome will be just another report which will sooner or later disappear in the UN archives.

Internet Governance and the United Nations: A Hot Potatoe

Internet Governance and United Nations is a delicate issue and a hot potato. Since 2003, the days of the UN World Summit of the Information Society (WSIS), there is a hidden intergovernmental arm-twisting behind the scenes on how to manage the global Internet. Some governments prefer an intergovernmental oversight UN mechanism, others prefer a multi-stakeholder governance model.

Just recently, in January 2018, the UNCSTD Working Group on Enhanced Cooperation (WGEC), after four years of arm-twisting, failed to reach a consensus on what to do next to enhance Internet Governance cooperation. Politically, the world is split over the question of how to manage the evolution and the use of the most important infrastructure of the 21st century. And with the growing unilateralism in today's world politics, there is only little hope, that a common understanding will emerge soon. In contrary, the fragmentation of opinions and approaches in world politics includes a growing risk of re-nationalization and fragmentation of the Internet.

On the other hand, the world has changed since 2003. 15 years ago, less than half a billion people were online. Today, we have more than four billion Internet users. In 2003, Internet Governance was a technical issue with some political implications. Now it is a political issue with a technical component. In 2003, the political controversy was mainly about the management of critical Internet resources; it was ICANN vs. ITU. Today, it is cybersecurity, cyberweapons, digital trade, eCommerce, privacy, freedom of expression and many other issues, managed by intergovernmental organizations and networks from G7, G20, BRICS, NATO, ASEAN, OSCE and SCO until WTO, UNESCO, WIPO, ILO, HRC and many others. Those actors had little or nothing to do with the Internet 15 years ago. Now they are key players. While the role of technical bodies like ICANN, RIRs, IETF, IAB, IEEE, ISOC, and others is as important as it was in 2003, there is a significant power shift in the global Internet Governance Ecosystem.

At the eve of the 2020s, there is no difference anymore between the "Internet world" and the "real world." The "real world" is now a world based on the Internet. In 1996, John Perry Barlow declared in Davos, that the cyberspace is the "new home of mind" where "Governments of the Industrial World" and "the giants of flesh and steel" have no place. But today's reality is, that the "giants of flesh and steel" and the "governments of the world" have likewise settled in cyberspace. And indeed, cyberspace is too big to be populated and managed by just one single community or by one stakeholder group. Peace, security, disarmament, trade, sustainable development, and human rights, where the UN has a mandate for policymaking since 1945, are now Internet issues.

Insofar, it makes a lot of sense that a UN panel looks into the broader implications of future digital cooperation. And it is very wise, to leave this investigation into the digital future, not in the hands of the "governments of the world" and the "giants of flesh and steel" but also not to exclude them.

One can not ignore that the new Internet Governance complexity has produced a new need to go beyond the Internet controversies of the last 15 years. Time is ripe to start a new thinking about a common responsibility of all state and non-state actors in tomorrow's digital world. Time is ripe for a new and unbiased approach to the global Internet Governance dialogue. We have to leave behind us the senseless battles between "multilateralism" and "multistakeholderism." As said above, the cyberspace is too big to be managed just by one group. There is space both for multistakeholder collaboration as well as for intergovernmental arrangements, as long as all sides follow international law, human rights and the fundamental principles of Internet Governance, as laid down, inter alia, in the NetMundial Declaration from April 2014.

When Guterres addressed the Munich Security Conference (MSC) on February 16, 2018, he made it clear that he is "one of those that defend that only through a multiple stakeholder approaches we will be able to make progress." I believe, said Guterres, that "it is necessary to bring together governments, the private sector involved in these areas, civil society, academia and research centers, in order to be able to establish at least some basic protocols to allow for the web to be an effective instrument for the good." He rejected any UN ambitions to control the Internet and added: "I don't intend that the United Nations has a leadership role on this, but I can guarantee that the United Nations would be ready to be a platform in which different actors could come together and discuss the way forward, in order to find the adequate approaches to make sure that we are able to deal with the problem of cybersecurity… especially now that artificial intelligence that is providing enormous potential for economic development, social development and for the well-being for all of us."

The UN as a facilitator, not as a manager or controller. This sounds reasonable. With all its weaknesses, the UN has a high authority and gives processes legitimacy. This gives the panel enough flexibility: it is not bound by traditional UN rules of procedures, but it benefits from the aura of the UN.

With the appointment of the new panel, Guterres has now placed the hot potato into the hands of a rather mixed multistakeholder group from around the globe with ministers, CEOs, professors, technical experts, civil society activists, Nobel prize winners and even one of the fathers of the Internet, Vint Cerf. Guterres can now wash his hands and say good luck. But will the panel be able to deliver? Payday is May 2019, a very small timeframe for such a big problem.

On the other hand, with so many Internet reports which have been produced in the last years by high-level commissions and working groups, it should not be a problem for the panel to understand the issue. There is no need anymore "to study" the various implications. All the cards are on the table. This is a time for courageous, creative and innovative decisions. If the panel produces a short report with very clear and simple messages which embrace the new Internet Governance complexity, it can offer a way forward on how to frame the political Internet discussions in the 2020s. It can send back the hot potato to the 193 UN member states and the numerous non-state actors on a dish with a knife and a fork and good instructions on how to eat it.

The WGIG Experience

Guiterres is not the first UN Secretary General who appointed an expert group to discuss Internet issues. In 2003, at the end of the first phase of the UN World Summit on the Information Society (WSIS) in Geneva, the governments of China and the US disagreed fundamentally on how the Internet should be governed. The risk was high, that the whole summit would have been collapsed. China argued in favor of "governmental leadership" for the Internet. The US preferred "private sector leadership." Both governments disagreed even about the terminology of "Internet Governance." The only thing they could agree was to ask UN Secretary General Kofi Annan, to establish a "Working Group on Internet Governance" (WGIG) with a mandate to define "Internet Governance," to identify Internet-related public policy issues and to give some recommendations to the UN member states, what to do during the 2nd phase of WSIS, scheduled for 2005.

Before the first WGIG meeting, Kofi Annan said in a speech in New York in March 2004: "The issues are numerous and complex. Even the definition of what we mean by internet governance is a subject of debate. But the world has a common interest in ensuring the security and the dependability of this new medium. Equally important, we need to develop inclusive and participatory models of governance. The medium must be made accessible and responsive to the needs of all the world's people." And he added that "in managing, promoting and protecting [the internet's] presence in our lives, we need to be no less creative than those who invented it. Clearly, there is a need for governance, but that does not necessarily mean that it has to be done in the traditional way, for something that is so very different."

Kofi Annan's call for "political innovation" was reflected already in the composition of the WGIG. The 40 members came not only from governments, as usual in the UN context, but included also stakeholders from the private sector, civil society, the academic and technical community. And indeed, the combined wisdom of this multistakeholder group paved the way for a real political innovation: The group rejected the concept, that the Internet needs "a leader." It argued that the Internet needs primarily a "trusted collaboration" and the engagement of the private sector, the civil society, the technical-academic community, and governments. Policy development and decision making should be "shared" by all stakeholders in their "respective roles," that is no stakeholder can substitute another stakeholder, but all stakeholders are needed to find sustainable solutions for the new emerging problems.

Not everybody in the WGIG expected that the governments will accept the "multistakeholder approach" as an innovative proposal for policymaking in cyberspace. Intergovernmental negotiations as a "world summit" have their own rules and governments take reports from expert groups normally just as "food for thought." Insofar it came as a surprise that the WGIG recommendation was confirmed in the "Tunis Agenda," word by word. There was no reasonable alternative on the negotiation table. And before declaring "defeat," the heads of States of the 193 UN member states took the "low hanging fruits" and opened the door to do "something that is so very different," as Kofi Annan has said in New York in 2004.

Nevertheless, the "governmental leadership camp," which could not stop the "opening of the door," tried to link the journey into the new cyberspace to their traditional understanding on the sovereign rights of states. For them, the "respective roles" of the stakeholders included a privileged role for governments, reflected in paragraph 35 of the Tunis Agenda which said that "authority for Internet-related public policy issues is the sovereign right of States." However, paragraph 35 was linked to paragraph 68 which said that the "development of public policy by governments" should be done "in consultation with all stakeholders." And paragraph 34 introduced language, that multistakeholder cooperation should be based on "shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet."

Which sounds like a "hair-splitting" by "word-smiths" reflected the unsettled conflict between worldviews of "hierarchies" and "networks," of "autocracies" and "democracies." It left space for three rather different concepts for digital cooperation:

  • The traditional concept of an absolute "state sovereignty" where "one decision maker" sits on top of a hierarchy,
  • The concept of "state sovereignty linked to consultations with non-state actors" where decision making remains in the hands of the "master on the top," but has to go through an open and transparent process,
  • The multistakeholder concept where policy development and decision making is shared on more or less equal footing among all involved and affected stakeholders, based on bottom-up, open and transparent processes.

Since 2005, the Internet Governance Forum (IGF), established by the Tunis Agenda, became the place for exercising such a multistakeholder cooperation. It worked out not bad. The multistakeholder approach for Internet Governance prooved its value. The IGF itself got a limited mandate which excluded the decision-making capacity. But the IGF discussions paved the way for a number of success stories by preparing such decisions through its open and transparent processes.

One example is the NetMundial Declaration on Principles of Internet Governance. Another one is ICANN's IANA transition. Since the first IGF in Athen in 2006, "Principles for Internet Governance" were discussed in numerous plenaries and workshops. In 2014, NetMundial summarized, globalized and multistakeholderized the IGF discussions and the numerous efforts by organizations like OECD, Council of Europe, Global Network Initiative (GNI), Association for Progressive Communication (APC) and others. In 2016, the IANA transition — a controversial item on nearly every IGF — demonstrated the capacity of the multistakeholder approach to transfer the stewardship role over the IANA functions from a powerful government to an empowered community.

Looking Forward

But all this is water under the bridge. Times have changed. There is a new Internet Governance Complexity. The power balance within the Internet Governance Ecosystem has shifted. On the horizon, we see shadows of new intergovernmental cyberconflicts, digital trade wars and massive violations of individual human rights. Are the "good old days" of the Internet over?

The Internet is again at a crossroads. This is not dramatically new. Since years the Internet community is stumbling forward from crossroads to crossroads. But at the next crossroads, the traffic will reach a new level. The "Internet community" is not sitting anymore in the driver's seat. The new vehicles on the information superhighway are operated by the security community, the military, the police, the trade people and many more constituencies which have their own established rules, procedures, cultures, lobby groups and only a little or no knowledge about the history of yesterday's Internet battles.

This new "clash of cultures" goes far beyond "multilateralism" vs. "multistakeholderism," far beyond "bellheads" vs. "netheads" or "privacy vs. security." 15 years ago, the military people were sitting over disarmament proposals, the police were dealing with traditional crimes, WTO people negotiated trade treaties, the UN Human Rights Commission discussed violations of human rights in failed states. All those communities were sitting in their well-established silos, busy with their well-defined core business. Today, all those groups have to deal with Internet-related issues.

Like on the Internet itself, where every computer is connected to every computer, every political problem is now connected to any other problem. Measures to strengthen cybersecurity — as the adoption of new laws — have economic implications, will affect digital trade and touch individual human rights as freedom of expression or privacy. Measures to protect human rights will affect the digital economy and cybersecurity. The European GDPR is a good example. Its intention, to strengthen individual privacy, has rocked the business model of many global corporations and challenges the day-to-day operations of law enforcement agencies.

The new "clash of cultures" is a "multiple clash" were military, trade, human rights, and Internet thinking comes together and it is not clear how this different approaches can be managed in a way that they can co-exist, learn from each other and coordinate their efforts to save cyberspace, to enable economic growth and sustainable development, respect human rights and allow a further and unfragmented evolution of a free, open and safe Internet. It seems that the old story of "the elephant and the seven blind men" gets a new reality check. A four-star-general, a police officer, an Internet entrepreneur, a human rights activist, a governmental bureaucrat, a professor, and an Internet user will have rather different sensors on their fingertips if they touch the Internet. But there is only one Internet.

It needs indeed a new wave of wisdom to bring this new complexity and the subsequent powershift in the Internet Governance Ecosystem into a new balance. The growing shadows of cyberconflicts and digital wars at the horizon are wake up calls. It is not too late to stop a digital dwindling spiral which could lead into a cyber catastrophe. But something has to be done to avoid, that the "clash" leads to a "crash," to a "digital Hiroshima."

It is interesting to recognize, that the two co-chairs of the panel are linked to private corporations which have initiated projects which are aimed to avoid a cyberwar and to enhance collaboration by developing digital trade. Microsoft is pushing since a couple of years for a "Digital Geneva Convention" to stabilize cyberpeace. Its "Tech Accord" is an invitation not only to the private sector, to move forward with substantial arrangements. AliBaba has launched an "eWorld Trade Platform" (eWTP) which is aimed to promote digital trade. "It is easy to start a trade war, but difficult to manage the consequences," said Jack Ma in January 2018 at the World Economic Forum in Davos. And he added: "Don't use trade as a weapon, use trade as a means to cooperate. It will take 30 years to fix the pain."

In other words, the new UN panel is confronted with the big issues. After years of great progress in the first ten years of the 21st century, in the last couple of years, we have seen rather irritating processes in the cyber world. Will the panel be able to make proposals to reverse such negative trends? Will the panel make innovative recommendations which will enable the pendulum to swing back in the 2020s? There are already two milestones fixed in the next decade: 2025 will see the WSIS+20 review of the Tunis Agenda. 2030 is the checkpoint for the sustainable development goals (SDGs).

Kofi Annan's plea for "policy innovation" was right in 2004, it is also right in 2018. Something has been achieved in the last 15 years. There is no need to reinvent the wheel. The WGIG-Definition, the IGF, the NetMundial Declaration, the London process, the IANA transition are good starting points. But with the new challenges coming from the new political unilateralism and the technical evolutions like the Internet of Things and Artificial Intelligence, a new innovative wave for Internet policymaking is needed. The multistakeholder approach was an innovation in 2005. The world is waiting now for another political innovation.

The UN panel is not alone. As said above, in the last years, many Internet reports had been produced by high-level groups. And more are in the pipeline. The UN Secretary-General did welcome "the increased focus on the implications of digital technologies for our society and our economy through commissions, conferences and other forums. This signifies that the timing is ripe for the digital policy ecosystem to evolve to the next level of maturity. The work of all these initiatives can and should be mutually reinforcing. Wherever possible, this Panel will work with other initiatives and seek to identify synergies and complementarities." The "Global Commission on the Future of Work" and the "Global Commission on Stability in Cyberspace" are only two such bodies, which could help to reach this "next level of maturity."

In my "Internet Governance Outlook 2018” I wrote: "What is needed is a holistic approach which takes into consideration all aspects, including unintended side effects. But unfortunately, the existing Internet negotiations mechanisms — with the exception of the Internet Governance Forum (IGF) — does not provide such a broad and inclusive approach. As long as the constituencies will remain in their silos, progress will be limited. And if this "silo approach" is mixed with a political unwillingness to enter into multistakeholder arrangements, not much can be expected from 2018."

I hope that I was wrong and the UN Panel will contribute to turning political unwillingness into readiness that will take the next stumbling step forward into the still unknown territory of the endless cyberspace.

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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