Probably few people involved with the Internet, either as users or suppliers, have ever heard of the Working Group on Enhanced Cooperation (WGEC). In fact, on January 31 this United Nations-based working group with grand ambitions for making “global public policy” for the Internet terminated its activities without accomplishing anything. The WGEC held five meetings over two years, based on a mandate that was established in 2005. But in the end it was unable to agree on any recommendations. For those in the know, this failure is completely unsurprising.
So why bother to write about an obscure UN working group that couldn’t make a decision?
Because, as you will see, the WGEC provides an object lesson in how not to do global internet governance. More specifically, it shows why it is futile to rely on states and intergovernmental processes for the development of global public policies for the Internet. It also shows why diplomatic attempts to obscure hard choices with vague words don’t succeed – they just waste everyone’s time.
The WSIS legacy
The WGEC – and the bizarre, deliberately fuzzy concept of “enhanced cooperation” which it was supposed to develop – could be accurately described as part of a 15-year hangover from the World Summit on the Information Society (WSIS), which ran from 2003 to 2005.
During WSIS, governments woke up to the fact that the Internet was both very important and yet not under the control of any intergovernmental institution or international law. Insofar as any government seemed to have control, it was the United States, which had unilaterally created ICANN, held life-or-death contractual power over it, and possessed the sole authority to approve modifications to the global domain name system’s root zone file. This situation, which had developed as a fait accompli, offended them. And indeed the whole arrangement violated established notions of sovereign equality, as one state held unilateral leverage over the naming and addressing system that held the global internet together.
At that time, few governments understood or were committed to the notion of multistakeholder governance led by non-state actors. Indeed, back then ICANN’s implementation of non-state governance was so imperfect as to be difficult to defend. Though the private sector and civil society largely preferred ICANN to intergovernmental institutions, how could they claim that Internet governance was open, bottom-up, private sector-led and free of government control when ICANN itself was accountable not to the global Internet community, but to the US Commerce Department?
WSIS thus turned into in a power struggle between the U.S. and the Internet community on one side, and the rest of the world’s governments on the other. Led by the BRIC countries, particularly Brazil, countries wedded to traditional notions of sovereignty and intergovernmental control correctly saw ICANN as an anomaly: it replaced their own ability to make public policy for communications with some odd private corporation full of non-state actors under the supervision of one state. Even the Europeans were concerned about this.
Stakeholders and their roles
At WSIS, only states were represented in drafting the official resolutions. Still, the initial statement that came out of the first (Geneva) phase of WSIS in 2003 tried to find a middle ground on the multistakeholder-government spectrum. States nominally accepted multistakeholder governance, but with an important limit: different stakeholder groups, they claimed, had different roles. “Policy authority’ was reserved to states as a “sovereign right.” The private sector could be in charge of “technical and operational matters” that “do not impact on international public policy issues.” Civil society was let into the door, barely, because it “has played an important role on Internet matters…at the community level,” whatever that meant. For the sake of achieving consensus, and because it was itself a state, the US government accepted this poison pill in the WSIS documents. From this point on, states could claim a privileged position in the formulation of public policy for the internet. And stakeholders would be confined to their “respective roles.”
The European defection
The concept of stakeholder roles did not resolve the WSIS controversies; it was more like a camel’s nose under the tent. If governments were responsible for public policy for the Internet, then how would they exercise this power? The claim of a privileged role for states in the formation of policy led naturally to calls for new international organizations, or for ICANN to be second-guessed or supervised by governments, or for governments to negotiate a treaty articulating policies that ICANN would have to abide by. To the US, ICANN and most of the Internet community, this sounded a lot more like intergovernmental control than like bottom up multistakeholder governance. The conflict raged on.
In an attempt to bridge the gap, the European Commission came up with the kind of formless and ultimately unworkable compromise that the European political community seems to specialize in. It proposed a “new cooperation model” that would not replace existing organically evolved internet institutions, but would seek “complementarity between all the actors involved.” Governments would develop “policy principles,” but would not get involved in the “day-to-day operations” of the Internet and they would (of course!) respect the internet’s architectural principles in the process. It was framed as a “public-private cooperation model” that would, they chirped, “contribute to the sustainable stability and robustness of the internet.”
The U.S. saw nothing in this model but a concession to the sovereigntists and BRIC nations, and framed it as a threat to internet freedom. The US Secretaries of Commerce and State teamed up to write a letter to the governmental representatives at WSIS claiming that:
Burdensome, bureaucratic oversight is out of place in an Internet structure that has worked so well for many around the globe. We regret [that] the recent positions on Internet governance (i.e., the “new cooperation model”) offered by the European Union…seems to propose just that – a new structure of intergovernmental control over the Internet.
To the Bush administration, apparently, having all root zone file changes approved deep in the bowels of the U.S. Commerce Department, a 75 page IANA contract and 10 page MoU between Commerce and ICANN did not count as “burdensome, bureaucratic oversight.” Still, the letter seems to have pushed back against the European initiative.
From “New Cooperation Model” to “Enhanced Cooperation”
Ironically, the final document approved by WSIS, known as the Tunis Agenda, contained many elements of the European proposal. Although it did not establish any new organizations or processes other than the Internet Governance Forum (which was explicitly barred from negotiating binding text), it recognized “the need for enhanced cooperation” amongst governments and called for the development of “globally-applicable principles on public policy issues associated with the coordination and management of critical Internet resources.” The full text of paragraphs 69-71 is reproduced here:
- 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.
- Using relevant international organizations, such cooperation should include the development of globally-applicable principles on public policy issues associated with the coordination and management of critical Internet resources….
- The process towards enhanced cooperation, to be started by the UN Secretary-General, involving all relevant organizations by the end of the first quarter of 2006, will involve all stakeholders in their respective roles,
So a “new cooperation model” was not accepted, but “enhanced cooperation” was.
If one knows the context, it was abundantly clear that the term “enhanced cooperation” was code for some very fundamental political questions, such as: How can we reconcile sovereign equality with U.S. unilateral control of the DNS root? What is the role of governments and intergovernmental organizations in making Internet policy? All had to do with the relationship between Internet governance and states.
Yet in the aftermath of WSIS the meaning of the term was subverted. The existing Internet governance institutions (Internet Society, ICANN, RIRs, ccTLDs) joined with the U.S. and its allied five-eyes states to trivialize the definition and obstruct implementation of paragraphs 70 and 71. We were told that when a country code TLD operator meets with a government agency and some civil society people and has a nice conversation it should count as “enhanced cooperation.” People joked that when they helped an elderly person cross a busy street they were engaged in enhanced cooperation.
Some states and some civil society actors thought the new Internet Governance Forum (IGF) might be a good place to jointly develop those “globally applicable principles on public policy issues” called for in paragraph 70, in a safe, non-binding, multistakeholder environment. Yet the U.S. and its allies in the Internet industry prevented that from happening. Enhanced cooperation, they said, was not supposed to be taking place in the IGF – except if one meant that nice old man you helped across the street or that pleasant coffee you took with another stakeholder at the last IGF. As this happened, the process of “enhanced cooperation” that was supposed to go into motion immediately in 2006 evaporated into thin air.
While these tactics may seem dishonest at the tactical level, at the strategic level they made sense. Sovereigntist governments were intent on using the Tunis Agenda to insert governments into a more powerful position in global Internet governance. Hence, there was no incentive for those favoring multistakeholder governance by non-state actors to cooperate with them.
The Parting of the ways
As the BRIC countries and pro-sovereignty advocates began to realize that nothing serious would come from “enhanced cooperation” in the established Internet governance institutions, they turned to United Nations venues, where inter-governmentalism is the norm. In other words, the sovereigntists shifted the “enhanced cooperation” struggle to intergovernmental institutions, reflecting a growing fissure in Internet governance. A variety of reports on the topic emerged from various UN committees from 2009 on, some of which are recounted in this ECOSOC report. The split manifested itself in October 2011, when India, Brazil and South Africa proposed a Committee on Internet-Related Policies (CIRP) that would, they hoped, become a government-led alternative to the IGF. That initiative was shot down however when India wavered. A UN General Assembly Resolution 67/195 (December 2012) asked the Chair of the UN’s Committee on Science and Technology for Development (CSTD) to convene a working group on enhanced cooperation. A better opportunity came when it was time for the 10 year review of WSIS called for in the Tunis Agenda. A new CSTD working group, the one that ended with a whimper last month, came out of this 10 year review process. If one has the patience, one can read the records of the WGEC here. The bottom line is that, as noted before, the WGEC could not agree on any recommendations.
Now is the time to put the concept of enhanced cooperation to death, once and for all. Reviewing the history, one can only be amazed at the ability of the UN system and the Internet governance community to take a vague, undefined term that came out of an opportunistic political bargain nearly 13 years ago – and was abandoned almost immediately by key parties to the bargain – and turn it into the basis for endless proceedings, consultations and reports.
Rarely noted in the ongoing deliberations over enhanced cooperation is that the successful IANA transition obliterates most of the legitimate concerns that led to the call for enhanced cooperation in the first place. The U.S. government no longer has a privileged position supervising ICANN, it is just another GAC member. ICANN has become (more) accountable to its global community, and more internationalized.
As part of our abandonment of the notion of enhanced cooperation, we must also recognize that the idea was grounded in the concept of stakeholder roles – and that concept is both wrong and unworkable. It is better to have the policy decisions related to global Internet governance made directly by stakeholders than by governments alone. The authority of governments to make policy is derived from the people ultimately anyway. The quest for ‘sovereignty’ in Internet policy is futile; the ‘public’ in the ‘public policy’ referenced by states is transnational, not national, making states inadequate representatives of the global public interest. As I have argued elsewhere, we need transnational popular sovereignty, not national sovereignty, in Internet governance.
Furthermore, it is impossible to separate public policy issues from technical and operational matters in Internet governance. Policy decisions must be informed by and consistent with the way the technology works, and operational feasibility will always be an important factor in any policy decision regarding networks, applications and online services. Indeed, the 2014 NetMundial Multistakeholder Statement, endorsed by most governments, business and civil society, threw away the segregated view of stakeholder roles articulated by WSIS. It stated “The respective roles and responsibilities of stakeholders should be interpreted in a flexible manner with reference to the issue under discussion.”
Another lesson from the WGEC’s demise is that national governments lack enough common ground politically to be vested with policy authority over global governance of the Internet. Far from developing global principles, they are unilaterally asserting national controls. They are less interested in advancing the global public good of compatibility, openness and freedom of information than they are in pursuing their national interest. And their national interests often clash with those of other governments and with their own people. The sovereigntist states are never going to get the U.S. and its allies to accept intergovernmental supervision of ICANN or the internet generally, and the U.S. is never going to get the sovereigntists to accept fully their notions of Internet openness and freedom. Just as the UN Group of Governmental Experts could not come to a solid agreement on cyber security norms when it came to fundamental matters of cyber war or peace, so it seems unlikely that governments can agree on “globally applicable public policy principles” for the Internet. The fantasies coming from a few leftist civil society organizations about creating democratic global governance by means of intergovernmental institutions are just that – fantasies.
Enhanced cooperation came in with a bang but went out with a whimper. May it rest in pieces. It will not be missed.