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Internet freedom in a world of states

Dr Jeremy MalcolmFeb 18, 2013
  • The recent opposition to governments getting involved in Internet governance may be misplaced
  • In fact, it is imperative we find a more acceptable way for governments to participate

Digital Consumers by Dr Jeremy Malcolm
 
IN the wake of last year's defeat of the controversial ACTA (Anti-Counterfeiting Trade Agreement) treaty in Europe and of the SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act) bills in the United States, both of which called on intermediaries to police consumers' use of the Internet, digital rights activists in the West have naturally gained a heightened sensitivity to their governments intruding on Internet freedoms.

One indication of this was how aggressively they opposed all Internet-related proposals at the World Conference on International Telecommunications (WCIT) of the International Telecommunications Union (ITU) last December.
 
The fear was that although many of those proposals seemed modest, they were the vanguard of a movement from governments to more broadly address Internet governance issues such as online freedom of expression, security and privacy through purely intergovernmental processes, rather than through existing, more open and inclusive, multi-stakeholder mechanisms.
 
There are three assumptions that seem to underlie this fear:
 
1) Governments should not be involved in Internet governance.

2) If governments are involved in Internet governance, it should only be at the national level, not at the global level.

3) If governments are involved in Internet governance at the global level, there are existing, bottom-up multi-stakeholder mechanisms through which they can address all their concerns, instead of resorting to the ITU. 
 
However, all three assumptions are wrong. To fail to comprehend this is to misunderstand the forces that drive many governments towards the use of intergovernmental mechanisms to set policies for the Internet, and to overlook the opportunity that we have right now to channel these forces in a way that is more responsive to the concerns of ordinary Internet users.
 
In fact, if all three assumptions are disproved, it follows that finding a more acceptable way for governments to participate in global Internet governance is imperative. So let's examine those assumptions in turn.
 
The need for governments at the national level

The first assumption, that governments don't have a legitimate role in governance of the Internet, seems so far-fetched that I might be accused of raising a straw-man argument – yet it is a serious school of thought called cyber-libertarianism, and flows almost as an axiom from the framing of advocacy for online rights and freedoms (particularly by activists from the United States) as the “Internet freedom” movement.
 
Moreover this cyber-libertarian framing is not reserved to those who are otherwise politically libertarian. Even politically progressive activists are inclined to be more distrustful of governmental intervention online than offline, in an expression of Internet ‘exceptionalism,’ which holds that the Internet is different and deserving of a more hands-off regulatory approach.
 
To accept the cyber-libertarian proposition is to deny any role for government intervention at the national level, in areas that many of us actively support, such as:

  • Passing network neutrality rules that would prevent network operators from discriminating against particular types of Internet content or services.
  • Providing incentives for the migration to the next generation version of the Internet protocol, IPv6 – a task at which the forces of markets and norms have so far manifestly failed.
  • Setting enforceable standards for the protection of consumers' personal data that go further than the weak voluntary codes of practice adopted by segments of industry.
  • Extending universal service policies so that consumers in rural areas are guaranteed a basic level of Internet service, enabling them to participate in the information society on an equal footing with their city-dwelling peers.

In 1993 or even 2003 we might have given the market the benefit of the doubt and held off from regulating in these areas. But in 2013, it seems increasingly implausible that the legitimate interests of all consumers in having affordable access to the open Internet, whilst maintaining their own privacy, can be secured without targeted government intervention of some sort or other.
 
The need for governments at the global level

This brings us to the next assumption, which is that if governments do sometimes need to involve themselves in Internet governance, it should only ever be at the national level.
 
That can’t be true, because the decisions that governments make at the national level (for which most of us would accept the need in certain cases) have an invariable tendency to spill outside the country’s borders.
 
This occurs because the Internet itself is borderless, and so policies made in one country, whether by governments or by private actors, can affect users anywhere in the world, over whom the policy-maker has no legitimate claim of authority.
 
For example, in 2011 US authorities seized the domain names rojedirecta.com and rojedirecta.org claiming authority to do so under US law, although the domains were owned by a Spanish company and had been ruled legal under Spanish law (the domains were later returned).
 
Similarly, when content is taken down under authority of the US Digital Millennium Copyright Act (DMCA), it affects users throughout the world. Why shouldn’t those users have any say in that?
 
Whilst direct action through grassroots groups such as Anonymous is valuable as a last resort, it should never become our primary means to shape Internet policy.  As security specialist and author Bruce Schneier recently wrote:
 

The masses can occasionally organize around a specific issue – SOPA/PIPA, the Arab Spring, and so on – and can block some actions by the powerful. But it doesn't last. The unorganized go back to being unorganized, and powerful interests take back the reins.

 
To be organized at the global level, in a way that is effective to curb the rights abuses of governments and corporations, implies sitting at the table with them to manage the cross-border implications of Internet-related public policies.
 
Currently, this means sitting on the sidelines of the secret negotiations at the TPP (Trans-Pacific Partnership), or in the back row of the auditorium at WIPO (the World Intellectual Property Organization). And that’s if we're lucky.
 
On other issues, it means we have no say at all because there is no global forum dealing with these issues.
 
The need for institutional evolution
 
So we should at least consider whether a more formally institutionalized means of engagement of online activists in Internet policy discussions at the global level might bridge the gap that exists after self-regulatory, technology-based and grassroots-led initiatives have failed.
 
For some issue areas, this may be seldom; for example, we already have strong global mechanisms for the participation of all stakeholders in Internet standards development, and in the allocation of IP addresses and domain names, through institutions such as the IETF, the W3C and ICANN.
 
But in other areas, such as security and cybercrime, intellectual property enforcement, consumer protection, data protection and privacy, and online freedom of expression, we do need to look at the evolution of current institutional arrangements.
 
This moves us to the third assumption highlighted above, to the effect that there is no need for any reform to Internet governance arrangements. If only that were true.
 
There are global discussions of these issues, of course – but they are either too weak to have a tangible impact on actual policy outcomes (this is the case of the Internet Governance Forum or IGF), or they do not offer the opportunity for meaningful participation from all affected stakeholders (a much longer list, including the ITU itself, as well as the OECD, APEC, WIPO, the CSTD and the TPP).
 
Often it is civil society that is excluded from these existing arrangements – as was the case with ACTA, and now the TPP – but in other cases it is the governments from developing countries, which see developed-country groupings such as the G8 and OECD taking the lead, whilst their own interests are sidelined.
 
Therefore it is hypocritical for US policy-makers to label developing countries sidelined by US-driven initiatives such as these, and turning to the more inclusive (of governments) ITU, as Internet freedom's foes.
 
Thus outside of narrow technical areas, what we find is that far from being an inclusive multi-stakeholder regime, powerful governments and companies are making their own rules for the Internet and then seeking to impose them on the rest of the world.
 
We saw it with ACTA, SOPA and PIPA, we see it in progress at the TPP, and we see the potential for similar exclusionary rule-making at the ITU and even the OECD. This is the true face of the status quo of Internet governance, and it is unsustainable.
 
The need for Internet principles
 
There is a real opportunity here to influence the evolution of existing Internet governance arrangements. 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 set the scene for this, and was actually much more significant for the future of Internet governance than WCIT, 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 ....

 
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 need for a concrete proposal

In January this year the Chair of the CSTD outlined the process that is already in train to convene a Working Group on Enhanced Cooperation that will help to determine, one way or another, how the enhanced cooperation mandate will be expressed through the evolution of Internet governance arrangements.

The next steps are up to us. Will we participate productively to provide a firmer institutional foundation for the representation of the public interest in global Internet governance arrangements, or will we dig in our heels and insist that those arrangements remain forever stuck in the same mold as in 1998?

An evolutionary extension to existing Internet governance arrangements will, if it is sufficiently deliberative and transparent, expose and eliminate proposals from states that are based upon repression and control, since these would never pass muster in a multi-stakeholder environment – though at the same time, its authority should be limited to the development of principles, rather than their implementation or enforcement.

It may also help preclude the emergence of new exclusionary processes such as ACTA and the TPP in the future, and even if it doesn't, it will at least drain them of their claimed legitimacy and arm us to defeat them more easily.

For as long as we remain blind to this, rejecting or ignoring proposals for the evolution of Internet governance arrangements on the false assumption that the status quo is sustainable, we risk assuring the ITU's future as the only global body capable of authoritatively developing globally-applicable public policy principles for the Internet.

Dr Jeremy Malcolm is an Internet and Open Source lawyer, consumer advocate and geek. He is also a senior policy officer at Consumers International and can be found on Twitter and LinkedIn.

Previous Installments of Digital Consumers:

Copyright enforcement is killing people

WCIT: Freemasons, Internet memes and salt

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