Friday, August 01, 2014

Reframing the global Internet ecosystem

As the conversations around internet governance become trapped in confrontational language – ‘war’ between sovereigntist and multistakeholder models – it is time to move the emphasis back to the evolution of governance structures and decision making that works for all.

Mainstream media might not quite betray it yet, but there is a slow nuance to global internet governance debates that seek to understand the apparent face-off between two camps – the (market-led) multistakeholder camp and the (government-led) sovereigntist camp. There is an effort by scholars to move away from the dominant discourse – that a vote for multistakeholderism (MSM) is a vote for democracy, and anyone who dares to question the effectiveness of a multistakeholder decision making governance process is actually voting against democracy. This simplification, often offered by Western media and then echoed around the world, might be able to capture some of the arguments being made for either system, but it often fails to understand the nuances of what is really being debated, and why some governments offer an alternative viewpoint. The geo-political dimensions of this debate needs to be examined deeply and unpacked a little.

The first step is to understand the current distributed nature of internet governance structures. Broadly speaking, there is an‘infrastructural layer’, which has organizations like the ITU (International Telecommunications Union) and the IEEE (The Institute of Electrical and Electronics Engineers). According to some scholars, this is the layer concerned with connectivity, universal access and concepts such as net neutrality. There is then the ‘logical layer’ of the internet, defined by ICANN (Internet Corporation for Assigned Names and Numbers). ICANN has been in the news of late, where a battle over who gets to decide the internet’s Domain Name System – online real estate, if you will – and the operation of root name servers, is underway. This would be one of the fundamental critical resources that the internet is built on. A third, ‘content layer’, hosts organizations such as WTO (World Trade Organization), WIPO (World Intellectual Property Organization, IGF (Internet Governance Forum) and the OECD (Organization for Economic Cooperation and Development) that deal with intellectual property rights, cyber crime and other issues. Vint Cerf, in his paper ‘Internet Governance Is Our Shared Responsibility’[1] has also added another layer to the mix – the ‘social layer’ where organizations like the Human Rights Council and UNESCO (United Nations Educational, Scientific and Cultural Organization)work on trust, identity, human rights, and internet governance principles (which would include net neutrality).

A good place to start is identifying the debate: (i) are governments fighting between a distributed governance structure as we have now, or a single body (either under the aegis of the UN or simply government-led) to decide on all governance issues, (ii) are governments agreeing to stay with the distributed structure but arguing that about their role in some of these organizations, that is, some governments want their vote to carry more weight within a multistakeholder system, and (iii) are some governments calling for some common rules – a treaty perhaps --  for cyber security (including cyber warfare, surveillance, crime) while insisting the rest of major internet governance decisions should be taken within national borders.

In the first paper released by the Global Commission on Internet Governance, launched by two independent global think tanks, the Centre for International Governance Innovation (CIGI), the former dean of the Kennedy School at Harvard, Joseph Nye, writes, “it is unlikely that there will be a single overarching regime for cyberspace any time soon. A good deal of fragmentation exists now and is likely to persist. The evolution of the present regime complex, which lies halfway between a single coherent legal structure and complete fragmentation of normative structures, is more likely.”[2]

Some of this fragmentation persists because of the very different reactions the concept of multistakeholderism elicits. The current system seeks to give all actors a seat on the table; government, business, civil society, academia and the technical community alike. This democratic setup is ideally meant to ensure that the internet should not be bogged down by unnecessary regulation, and decisions are taken at ‘appropriate’ forums by relevant stakeholders. For example, some internet scholars believe the government-led body, ITU, is not the forum to discuss limiting spam, ostensibly to ‘control unsolicited bulk electronic communications and minimize its impact on international telecommunication services,’ as the conversation quickly devolves into regimes limiting free speech by terming it (as a Russian proposal sought to do in 2012) as ‘having no meaningful message.’ Using examples like this, they argue, a multistakeholder environment will ensure the internet does not fall victim to the proposals of authoritarian regimes.

Despite this logic, it isn’t easy to sell multistakeholderism across the board. There are a few explanations for this. The first pushback comes from authoritarian countries for whom democracy isn’t an inherent political philosophy they subscribe to, and so they favour a sovereign approach to IG. On the flipside, it cannot be assumed that support for MSM comes from countries who do not wish to control the internet. As Vint Cerf suggests in his paper, ‘in a more cynical view, with the recent discussions on Internet surveillance, it is also possible that one group of governments have the preference and tradition of exercising control and influence through restrictions, regulations and laws, while other governments see the openness of the Internet as an opportunity to control through surveillance of it.’[3]

The second question raised about multistakeholderism is that the entire process has been hijacked by vested interests. For example, if business were to influence civil society or even governments to vote for decisions that secure their profits, then in truth, business would, by proxy, have the most votes at the table. It might be kept in mind that private companies own most of the infrastructure the internet is built on.

The third reason is that multistakeholder arrangements are not appropriate for all discussions, for example, when discussing national cyber security issues. Most stakeholders do tend to agree that certain spaces of internet governance are the domain of the state due to the nature of the problem.

Finally, and this is a view, offered by India when it sought to reframe the view of the ‘internet’ as ‘equinet,’ which essentially makes the argument that the developed world has one set of problems that it deems are immediate – for example, intellectual property and the internet as a free trade zone – which are not the pressing problems of the developing world, where countries are still grappling with access, inclusion and last mile connectivity. Therefore, multistakeholder arrangements at the global stage might work better for countries that have attained a certain maturity in reaching internet penetration and creating markets, and government can confidently share equal space with commercial and civil society interests. For other governments, such as the Indian view expressed at Netmundial, their role as the driver of internet adoption is still key and therefore they are unwilling to share their role with commercial interests and burgeoning civil society groupings just yet. To them, while MSM has its place in the internet governance ecosystem, it cannot be applied unconditionally to any and all discussions.

However, no discussion about internet governance will be complete without mentioning another point of contention; jurisdiction. What laws is the internet subject to? Is it US law, international law, or will each country adhere to its own laws and function through bilateral and multilateral treaties? As of now, the laws of the country where data servers are located come into play. The previous Indian government suggested that the jurisdiction of the country affected should apply; that is, if Indians are victims of a certain cyber crime then Indian jurisdiction should apply, not the country where the server is located. A similar complaint is echoed when law enforcement officials from one country ask those in another country, where the server is located, to furnish information. As a reaction to jurisdictional issues (and also surveillance), recently there has been a move by many countries to locate their servers in the host country. This move is often called ‘breaking the internet’ as with costs of doing business going up (commercial enterprises will have to use multiple servers across the world) and the plethora of laws that will come into play, the internet’s default setting – a free trade zone – will be destroyed.

But crime is only one aspect of the jurisdictional issue. What laws apply to the many decentralized internet governance institutions that exist, which are decision making bodies? For example, ICANN, the organization with the power to award domain names internationally, is subject to US laws. A district court in Columbia, USA as ruled that ICANN should seize Iran’s internet domain name (.ir) and IP addresses to recover damages over $1 billion owed to terror victims. Does this mean that a US court can direct ICANN, and in a way, override the entire multistakeholder decision making process it has carefully constructed? Presently ICANN has responded to the ruling, denying that the domain names are the ‘property’ of any country, but the matter is far from over.

In fact, the French, miffed at ICANN for other reasons have actually put out an interesting proposal in the French senate on internet governance. The idea is that internet governance should evolve by an international treaty open to all states; that the Internet Governance Forum should be transformed into a ‘World Council for the Internet’ to ensure some form of conformity in the decisions taken at the various internet governance forums. Lastly, this proposal in the French Senate calls for ICANN to be reformed into the ‘World ICANN’ or WICANN, where it would adhere not to US law but the international or Swiss law. WICANN could then be under the authority of the new World Council for the Internet. Whether this idea will gain any momentum is yet to be seen, but it does make an attempt at reaching beyond the existing suggestions.

Any overhaul of the internet governance structure, or even a tweaking of the current arrangement needs to keep two important aspects in mind, other than decision-making processes: real accountability and operational feasibility. The fact is that extensive surveillance by the US government has also put a dent in international cooperation over these issues, due to a loss of trust. The answers might not be with us yet. To keep the internet free, a little freedom of thought might be in order.


The writer is a Fellow at the Observer Research Foundation

[1]Cerf, Vinton G. and Ryan, Patrick S. and Senges, Max, Internet Governance Is Our Shared Responsibility (August 13, 2013). I/S: A Journal of Law and Policy for the Information Society, 10 ISJLP 1 (2014).. Available at SSRN: http://ssrn.com/abstract=2309772

[2]Nye, Joseph, The Regime Complex for Managing Global Cyber Activities (May 2014). Global Commission on Internet Governance, Paper Series No. 1, (2014). Available at: http://www.cigionline.org/publications/regime-complex-managing-global-cyber-activities
[3]Cerf, Vinton G. and Ryan, Patrick S. and Senges, Max, Internet Governance Is Our Shared Responsibility (August 13, 2013). I/S: A Journal of Law and Policy for the Information Society, 10 ISJLP 1 (2014).. Available at SSRN: http://ssrn.com/abstract=2309772

AVAILABLE AT ORF'S CYBER MONITOR, AUGUST 2014: http://orfonline.org/cms/export/orfonline/html/cyber/cybermonitor_august2014.pdf

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