The deadline for public comments to the United Nations’ Working Group on Enhanced Cooperation is only about a week away. For those unfamiliar with the arcane details of Internet governance processes, ‘enhanced cooperation’ is an unfulfilled promise that emerged out of the 2002-2005 World Summit on the Information Society (WSIS).
This comment period gives everyone an opportunity to come to terms with the leftover baggage of WSIS. To put it more bluntly, it brings us face to face with the irrelevance and obsolescence of the WSIS meeting’s official outcome document, the Tunis Agenda for the Information Society. For the past 8 years, global Internet governance has been stumbling along under the pretense that the Tunis Agenda constituted some kind of grand bargain between the world’s governments and the Internet community regarding the future of Internet governance. But in preparing our comments on enhanced cooperation, it became increasingly obvious that the content of the Tunis Agenda is not viable as a foundation for the future of Internet governance.
WSIS, you will recall, was all about national governments waking up and discovering that there was this thing called the Internet that was revolutionizing global communications, and neither they nor the intergovernmental institutions of the UN had any direct control over it. Worse, the only institution that did seem to have some kind of governance leverage over it was a strange beast known as ICANN – a private nonprofit incorporated in California, unilaterally created by a United States government process and tethered to the U.S. Commerce Department through weird contracts that evolved out of Defense Department and National Science Foundation contracting in the 1980s and 1990s. Ardent defenders of national sovereignty, including Brazil, South Africa, Saudi Arabia, Iran and, um, France, saw this as an affront to their sovereignty. They ganged up on ICANN and the U.S. and demanded some kind of change. Although the US resisted these calls for change, the critics did manage to wring a concession out of the U.S., namely a call for ‘enhanced cooperation.’
What is enhanced cooperation (EC) and why should anyone care about it? EC is a code word for the Big Issue that pervades all debates about Internet governance: the conflict between governance by sovereign, territorial nation-states and their intergovernmental organizations on the one hand, and governance by the Internet’s organically developed, transnational, private-sector based institutions on the other (sometimes mislabeled “the multi-stakeholder model).
The concept of “enhanced cooperation” (EC) emerged out of this first big debate over the role of governments, which occurred during the WSIS process. Its inclusion in paragraph 69 the Tunis Agenda recognized certain governments’ dissatisfaction with the fact that the Internet as a whole was largely free of the direct control of nation-states, yet one nation-state (the USA) had special forms of influence over ICANN. This was correctly perceived as a contradiction that required some kind of change. And so in paragraph 69 of the Tunis Agenda we find:
69. We further recognize the need for enhanced cooperation in the future, to 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 Tunis Agenda contains a vague promise that some unspecified activities in the future will “enable governments, on an equal footing, to carry out their roles and responsibilities in international public policy issues pertaining to the Internet…” Thus, the purpose of EC was to mollify the governments that wanted a stronger, more multilateral approach to Internet governance, while not committing the US to do anything in particular. In other words, the main purpose of EC concept was to be vague enough to allow the contending parties to pretend that they had resolved a fundamental problem, even though they had not. They just delayed dealing with the problem, and here we are dealing with it 8 years later.
Paragraph 70 of the Tunis Agenda provides the key to the scope and original intent of the EC concept. It says that “such cooperation should include the development of globally applicable principles on public policy issues associated with the coordination and management of critical internet resources.” It is also clear from paragraphs 69 and 35 that it would be governments, not any other stakeholder group, who would develop these public policy principles.
Paragraph 35 of the Tunis Agenda defines the so-called “roles” of different stakeholder groups. It claims “policy authority for internet-related public policy issues” as the “sovereign right of States.” It relegates the private sector to “technical and economic fields” and dismisses civil society as having a role only in vague “Internet matters” at the “community level.” In other words, the Tunis Agenda seeks to exclude business and civil society from a direct role in the formulation of transnational Internet public policy.
Thus, the Tunis Agenda reflects a very backward-looking approach to policy development. It asserts a classical, pre-Internet view of policy making that reserves it exclusively to sovereign states. It subordinates multi-stakeholder governance to a mere right to be consulted by states as they formulate policy. Indeed, under the Tunis Agenda’s definition of enhanced cooperation, the ITU is already a multistakeholder institution because it consults with private sector and some civil society actors, while governments make all the final decisions.
In writing comments for the Internet Governance Project for the CSTD consultation, it became increasingly clear that the concept of enhanced cooperation, and indeed the entire Tunis Agenda, cannot provide the basis for the future evolution of Internet governance. It makes no sense to attempt to work within that straitjacket. The Tunis agenda’s definitions and concepts stack the deck in favor of a traditional sovereigntist approach. And a traditional sovereigntist approach is exactly what we don’t need.
The worst part of the Tunis Agenda is the definition of the “respective roles” of different stakeholder groups in paragraph 35. Advocates of Internet freedom and new forms of Internet governance should not accept, and indeed should actively challenge, the Tunis Agenda’s attempt to segregate stakeholder roles based on their status. In particular, we must reject the Tunis Agenda’s attempt to claim that national governments, who at best represent only a dominant coalition of political actors in a territory, are the exclusive arbiters of “public policy” for a global Internet.
Governments have no special or unique role in Internet governance. When it comes to matters affecting the transnational Internet, they should have the exact same status as any other stakeholder group. In other words, individual members of government agencies (at all levels of government, including the local and provincial level), should be able to participate in Internet policy development institutions on an equal-status basis with all other participants. We should not assume that one viewpoint “represents” everyone in a nation, any more than we should presume that one viewpoint represents all of civil society or all private sector business.
Policy should be formulated through the direct participation of individuals, and the policy system as a whole should be decentralized and based on voluntary cooperation as much as possible. Because of the diversity of views globally and the complexity of many internet policy issues, there should rarely if ever be truly centralized policies. Instead, we should rely on looser, more networked forms of governance as much as possible. When internet technical management requires some form of centralized coordination, policy should ensure that such coordination is as neutral and nondiscriminatory as possible, designed to facilitate Internet usage and innovation. It should not attempt to leverage these choke points to impose centralized policy aims on internet users as a whole.
Anyone who agrees with the general approach to Internet governance expressed in the preceding paragraphs will find it impossible to work with the Tunis Agenda. It is time for a new global compact. The Tunis Agenda needs to be consigned to the dustbin of history.
You said it very well that a centralized policy on internet governance should not be imposed. On planetary level there are so many cultures, so many way of living, so many ideologies, so it will be impossible to have unity in internet governance. Instead, we can relate, we can work together, respecting each other specificity.
I was directly involved in the WSIS negotiations and, in my recollection, “enhanced cooperation” was a code word for “reducing the dominant role of the United States government”. But not everybody shared that understanding and indeed ever since WSIS there have been debates regarding what the term was supposed to mean.
If one accepts that the purpose of EC was to reduce the dominant role of the US, then there would be two ways to achieve that: (1) reduce the US government’s involvement in Internet matters or (2) increase the involvement of other governments. As I recall things, the US made it quite clear that they were not ready to reduce their own role, so consequently other governments pushed to increase their own roles.
Note that what was under discussion at WSIS was the role of governments regarding international governance, in particular of the naming and addressing resources. Essentially all states apply national laws to the Internet: courts interpret existing laws by analogy, and parliaments pass new laws. As I recall, at WSIS there was tacit agreement that countries retained their rights to legislate nationally, and indeed this is reflected in the Tunis Agenda, as Milton points out.
Regarding alternatives to government involvement in Internet matters, I think that it is not realistic to think that governments would abandon their national prerogatives to legislate, nor that they would somehow agree not to legislate for Internet matter. For example, surely child pornography would not be exempted from national laws if it takes place on the Internet. Similarly, copyright will be enforced also on the Internet. Etc. Etc.
But one might propose that the international aspects be governed differently, with more participation by end-users, and indeed those who recall the initial setup of ICANN will remember that the “at large” constituency was supposed to be more influential than it actually is at present.
But I wonder whether that sort of global participative democray would work in practice, since commercial interests and their lobbies could well unduly influence such a process, given that most end-users would probably not be interested in participating or even be able to do so (think of the language barriers).
It is impossible to have a uniform world. When I see this tendencies to impose unique laws, rules, leaders to so different people, so many efforts for that, it makes me sad. Every culture has his particularities, that should be preserved. That is my belief!