APRIL 27, 2014
The Brazil meeting, the Netmundial, has succeeded in producing an outcome document that commands international legitimacy. Among governments, only Russia, Cuba and India explicitly distanced themselves from the outcome. Given the speed with which the process was put together and the need for process innovations to aggregate the comments of hundreds of people and make appropriate modifications to the document, we should be impressed with this accomplishment.
The most significant content in the Netmundial Multistakeholder Statement is its indirect (and sometimes direct) repudiation of the World Summit on the Information Society (WSIS) Tunis Agenda. We are now in a post-WSIS world, an Internet governance arena that explicitly endorses a form of multistakeholder governance in which non state actors have rough parity with state actors. Indeed, while some civil society actors were disappointed with and somewhat petulant about last minute language modifications related to issues like net neutrality, intermediary liability and surveillance, these criticisms missed the point. The essential debate we were having was not about specific policy issues (which anyway are mostly handled at the national level) but about the overall approach to global Internet governance, the nature of the ‘ecosystem’ itself.
The key changes are reflected in the section on “Internet governance process principles.” Here we can see stark differences between Netmundial and WSIS. Here’s Netmundial:
Internet governance should be built on democratic, multistakeholder processes, ensuring the meaningful and accountable participation of all stakeholders, including governments, the private sector, civil society, the technical community, the academic community and the users.
Contrast this with the Tunis Agenda:
The international management of the Internet should be multilateral, transparent and democratic, with the full involvement of governments, the private sector, civil society and international organizations.
One M-word (multistakeholder) is present in Netmundial statement, while the other M-word (multilateral) is absent and conspicuously present in the Tunis Agenda. Netmundial also repudiated the Tunis Agenda’s definition of segregrated roles for participants in Internet governance. Netmundial:
The respective roles and responsibilities of stakeholders should be interpreted in a flexible manner with reference to the issue under discussion.
The Tunis Agenda, in contrast, defines distinct, separate roles for sovereign states, the private sector, civil society, and intergovermental organizations. In these definitions, states are pre-eminent and exclusive authorities over the making of international public policy:
Policy authority for Internet-related public policy issues is the sovereign right of States. They have rights and responsibilities for international Internet-related public policy issues.
Contrast the reference to “international Internet-related public policy issues” in the Tunis Agenda with the Netmundial statement:
The development of international Internet-related public policies and Internet governance arrangements should enable the full and balanced participation of all stakeholders from around the globe, and made by consensus to the extent possible. … Anyone affected by an Internet governance process should be able to participate in that process. …. Internet Governance should be carried out through a distributed, decentralized and multistakeholder ecosystem.
Overall, this is a huge win for the so-called “multistakeholder model.” The only place where the Netmundial document explicitly references the Tunis Agenda is in a backwards glance at the rat hole known as “enhanced cooperation.” The Netmundial statement says:
Enhanced cooperation as referred to in the Tunis Agenda to address international public policy issues pertaining to the Internet must be implemented on a priority and consensual basis. Taking into consideration the efforts of the CSTD working group on enhanced cooperation, it is important that all stakeholders commit to advancing this discussion in a multistakeholder fashion.
‘Enhanced cooperation’ was intended by sovereignty advocates to be the Tunis Agenda’s call to move toward some kind of new role for states in Internet governance, on a more “equal footing,” which was code for US dominance. But the language was so garbled we are still trying to figure out what it means nearly 10 years later. Indeed, it is unclear why this reference to enhanced cooperation survived the Netmundial process; numerous commentators noted that the term was not well defined. Even so, the damage done by the retention of this language is minimized by the fact that the statement calls for discussion to be advanced “in a multistakeholder fashion.”
When it comes to specific policy issues, as noted before, the Netmundial statement is not so impressive – it is full of exhortatory language that assigns rights and benefits with absolutely no regard to how they will be achieved, and its stance on controversial policies often contains weasel words that provided objectors with an escape clause.
The Internet Governance Project, supported by various ccTLD operators and others, succeeded in getting language calling for structural separation in the IANA transition into the first draft of the document. ICANN marshaled all of its considerable resources to eliminate that language. First they succeeded, then it was put back in, and the final result, as one might expect, was a watered-down compromise. Now the statement only says
It is desirable to discuss the adequate relation between the policy and operational aspects.
The statement on “permissionless innovation” is another example of a compromise:
For the preservation of its dynamism, Internet governance must continue to allow permissionless innovation through an enabling Internet environment, consistent with other principles in this document.”
While a recognition and validation of permissionless innovation is welcome, the last phrase, “consistent with other principles in this document,” was the escape clause for the copyright lobby, who are very much into getting permission for anything you do. Likewise, in the statement about surveillance,
“Mass and arbitrary surveillance undermines trust in the Internet and trust in the Internet governance ecosystem.
…insertion of the word “arbitrary” provided the escape clause for the US, UK and other furtive defenders of surveillance, because they can and do claim that what they do is targeted and not arbitrary.
Still, the Netmundial document significantly changes the tone of the global conversation on Internet governance, consolidating the gains associated with the more open participation of non-state actors. It also proved that a relatively open process could produce an agreed outcome document – a lesson that we hope the UN Internet Governance Forum will learn something from.