The Unanswered Questions of NetMundial

Guest blog by David Johnson

I join many others in commending Brazil for a successful NetMundial meeting. The shared sense of commitment to a free and open internet was tangible. Experimental processes opened up new ways of engaging more people in the multi-stakeholder process and preserving the transparency of efforts to find consensus.

Now is the time to focus on how to move forward to address questions that couldn’t realistically be expected to have been resolved at this first stage:

  1. Whether and how the multi-stakeholder process can be used to make binding decisions in a way that respects the human rights values so strongly voiced at the conference;
  2. Whether and to what degree Internet governance mechanisms developed or strengthened as a result of the meeting will be used to govern online behavior as well as the technical operation of the net.

It is one thing to find rough consensus on a non-binding, aspirational document, by abstracting away disagreements and postponing hard questions to another day. It is quite another thing to develop consensus on rules that will govern what the users of the internet may or may not do. We must note that the Multi-Stakeholder model is being put forward as the best way to engage in governance. At least in the context of ICANN, that takes the form of creating “consensus policies” that become contractually binding on registries, registrars and registrants. These policies bind end users either as mandatory conditions (adhesion contracts) for getting and keeping a domain name or by means of decisions by the intermediaries (e.g., registrars) to delete domain names so as to maintain “accreditation.”

Netmundial strongly endorsed the principles of Human Rights. But it did not answer the question – raised at the meeting – of how such rights, normally invoked against governments, would apply to a registrar or registry or even ICANN itself. Will ICANN find a way irreversibly to commit itself (by contract or otherwise) not to regulate content on the net, and establish an independent judicial branch that could hold it to that commitment? ICANN’s promise to put “ICANN accountability” on a track closely tied to the IANA transition discussions opens the possibility that this core issue can now be resolved.

The final document did not change previously negotiated language regarding intermediary liability – in part because the US Government Delegation spoke strongly of the need for intermediaries to take steps to eliminate copyright infringement. Various other groups and governments have in mind that intermediaries may be marshaled, by a multi-stakeholder policy making process, to use their powerful technical and contractual levers to eliminate malware, phishing or fraud — or, as some would have it, any behavior that undermines trust in the net. We need to identify a constitutional limit on the extent to which the technology of the internet itself (and the powers of Internet intermediaries) will be required to be used to enforce globally binding rules regarding online behavior.

Finally, we have to think very hard about how the multi-stakeholder process can scale and how we can bridge what some called a “cultural divide” between governments and non-governmental actors. The core idea of the multi-stakeholder model is that binding decisions require consensus. If the ISOC chapter of country x speaks in opposition to the position of the government of country x, is each entitled to claim the absence of consensus and insist on further discussion before a decision is made? Can we develop better means, such as voting systems based on revocable, transferable proxies, of enabling a few people to credibly claim to speak on behalf of a much larger group? Are we prepared to accept a system in which most questions involving non-technical matters are effectively left to local decision-making (by governments or others) in light of the global diversity of values and rules?

NetMundial showed that we have enough good will and sufficiently shared values to answer those questions by means of a multi-stakeholder process. I’m pretty sure that, when we come to consensus on the answers to these questions, we will have helped to preserve and protect a free and open internet.

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