Info Service on UN Sustainable Development (May14/03)
friends and colleagues,
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 (UN Commission on Science and Technology for
Development) working group on enhanced cooperation, it is important
that all stakeholders commit to advancing this discussion in a multistakeholder
Stakeholder representatives appointed to multistakeholder Internet
governance processes should be selected through open, democratic,
and transparent processes. Different stakeholder groups should self-manage
their processes based on inclusive, publicly known, well defined and
There should be meaningful participation by all interested parties
in Internet governance discussions and decision-making, with attention
to geographic, stakeholder and gender balance in order to avoid asymmetries.
6. Enabling capacity building and empowerment through such measures such as remote participation and adequate funding, and access to meaningful and timely information are essential for promoting inclusive and effective Internet governance.
7. All stakeholders should renew their commitment to build a people centered, inclusive and development oriented Information Society as defined by the WSIS outcome documents. Therefore in pursuing the improvements of the Internet governance ecosystem, the focus on development should be retained.
8. Internet governance discussions would benefit from improved communication and coordination between technical and non-technical communities, providing a better understanding about the policy implications in technical decisions and technical implications in policy decision-making.”
The second section of the roadmap deals with institutional improvements. The outcome document recognizes the recommendation of the UN CSTD for strengthening the Internet Governance Forum (IGF). It also contains the following points for the improvement of IGF, which include: (a) Improved outcomes: Improvements can be implemented including creative ways of providing outcomes/recommendations and the analysis of policy options; (b) Extending the IGF mandate beyond five-year terms; (c) Ensuring guaranteed stable and predictable funding for the IGF, including through a broadened donor base, is essential; (d) The IGF should adopt mechanisms to promote worldwide discussions between meetings through intersessional dialogues.
Further, the document expresses the hope that “A strengthened IGF could better serve as a platform for discussing both long standing and emerging issues with a view to contributing to the identification of possible ways to address them.”
The document also identified reform of the Internet Assigned Numbers Authority (IANA) and the Internet Corporation for Assigned Names and Numbers(ICANN) as an institutional improvement. It states:
“In the follow up to the recent and welcomed announcement of [the] US Government with regard to its intent to transition the stewardship of IANA functions, the discussion about mechanisms for guaranteeing the transparency and accountability of those functions after the US Government role ends, has to take place through an open process with the participation of all stakeholders extending beyond the ICANN community.
The IANA functions are currently performed under policies developed in processes hosted by several organizations and forums. Any adopted mechanism should protect the bottom up, open and participatory nature of those policy development processes and ensure the stability and resilience of the Internet. It is desirable to discuss the adequate relation between the policy and operational aspects.
This transition should be conducted thoughtfully with a focus on maintaining the security and stability of the Internet, empowering the principle of equal participation among all stakeholder groups and striving towards a completed transition by September 2015.
It is expected that the process of globalization of ICANN speeds up leading to a truly international and global organization serving the public interest with clearly implementable and verifiable accountability and transparency mechanisms that satisfy requirements from both internal stakeholders and the global community.
The active representation from all stakeholders in the ICANN structure from all regions is a key issue in the process of a successful globalization”.
The third section lists security and stability as issues on specific Internet Governance topics, stating the following:
“a. It is necessary to strengthen international cooperation on topics such as jurisdiction and law enforcement assistance to promote cybersecurity and prevent cybercrime. Discussions about those frameworks should be held in a multistakeholder manner.
b. Initiatives to improve cybersecurity and address digital security threats should involve appropriate collaboration among governments, private sector, civil society, academia and technical community. There are stakeholders that still need to become more involved with cybersecurity, for example, network operators and software developers.
c. There is room for new forums and initiatives. However, they should not duplicate, but add to current structures. All stakeholders should aim to leverage from and improve these already existing cybersecurity organizations.”
On mass surveillance it states “Mass and arbitrary surveillance undermines trust in the Internet and trust in the Internet governance ecosystem. Collection and processing of personal data by state and non-state actors should be conducted in accordance with international human rights law. More dialogue is needed on this topic at the international level using forums like the Human Rights Council and IGF aiming to develop a common understanding on all the related aspects.”
The fourth section of the roadmap identifies the following issues for future deliberations: Different roles and responsibilities of stakeholders in Internet governance, including the meaning and application of equal footing; Jurisdiction issues and how they relate to Internet governance; Benchmarking systems and related indicators regarding the application of Internet governance principles; and Net neutrality.
An observer expressed concern about the process of the NETmundial negotiations, which allowed the negotiation of the outcome document within a multistakeholder framework and replacing the exclusive negotiations among governments. Supporters of multistakeholder processes already started projecting it as the ideal negotiation format for future negotiations on Internet governance.
The President of Brazil Dilma Rousseff in her inaugural address stated that the idea of the NETmundial is to “lend a new momentum to the ongoing discussions in a much needed sense of urgency”.
She said “The first such premise is that we all want to protect the Internet as a democratic space, available to end use by all, as a shared asset, and as such, truly heritage of humankind, more than simply a work tool and way beyond its well‐known contribution for economic growth, provided, of course, that it be increasingly inclusive. The second premise or assumption is the desire we all share to incorporate an increasingly broader audience into this process. May I remind all ladies and gentlemen and friends attending this session that Brazil advocates that Internet governance should be multisectoral, multilateral, democratic, and transparent in nature”.
On the dominance of the US role in the current Internet governance mechanism she said, “I also attach a great deal of importance to the multilateral perspective, according to which government participation should occur on an equal footing among governments in such a way as to ensure that no country will have or bear greater weight vis‐a‐vis other countries”.
She further said: “Our advocacy of the multilateral model is the natural consequence of an elementary principle that should govern today's international relations as enshrined in the Brazilian Federal Constitution. I'm talking about equality among states. We, therefore, see no opposition whatsoever between multi‐‐‐or the multilateral and the multisectoral nature of the Internet. Actually, the opposite of that would be a one‐sided unilateral Internet which is untenable”.
She clearly stated “multisectoral arrangements that are, in turn, subject to oversight by one or few states are not acceptable either”.+
Just Net Coalition Response to the NetMundial Outcome Document
The Just Net Coalition recognizes the efforts of the organizers of NetMundial to achieve an outcome document, and welcomes certain important steps forward in the final text, particularly the emphasis on managing the Internet in the public interest. However, even though the document is non-binding, it leaves us deeply concerned about the inclusion and phrasing of certain clauses (such as those on intellectual property and private policing on the Internet), the omission of key issues including cyber-peace, the lack of progress on net neutrality, the weak language on mass surveillance, and above all about how the concept of new types of multistakeholder processes with new kinds of outputs, lacking any clear definition, might be construed by different actors in the future.
For the Just Net Coalition, “democratic multistakeholder processes for Internet governance” means democratic processes with clear guidelines for multistakeholder participation in their respective roles and responsibilities. We are pleased that, thanks to numerous interventions, the NetMundial outcome was modified so that it does not favour the “equal-footing multi-stakeholder model” and thus a clear departure from the fundamental principles of the Tunis Agenda, as was proposed in the original draft of the outcome document.
While Brazil's intent in convening this meeting was laudable, it is worrying that vested interests were able to unduly influence the meeting by controlling key committees, and as well that an attempt was made to gain an international endorsement for a new model of decision making on international issues. This “equal footing multi-stakeholder model” would quite clearly and strongly favour the interests of big business. We were pleased that this attempt did not succeed, and we will continue to vigorously oppose all attempts to effectively impose the rule of big business, or otherwise undermine democracy.
We remain deeply concerned that processes such as the one used at NetMundial can easily lead to outcomes that are determined by the red-lines as well as the core interests of the most resourceful parties, which, at the global level, are often the US and big business.
In the face of strong presence, resources and efforts by powerful interests, other voices may get forced on the back foot, even to the point of having to defend inclusion of what are universally agreed norms, such as happened at NetMundial.
The NetMundial outcome document contains certain positive elements, particularly in that it recognizes that the Internet is to be managed “in the public interest”. While falling short of the civil society demand for characterizing the Internet as a “global commons” or “public good”, it is a considerable progress on the WSIS language, which says that the Internet is “a global facility available to the public and its governance should constitute a core issue of the Information Society agenda”.
We hope that well developed and properly executed new democratic multistakeholder processes for Internet governance will explicitly foster a decentralized, free and open, non-hierarchical network of networks. Democratic governance processes will not implicitly favour the current trends of Internet governance which are leading us more and more towards monolithic, centralized walled gardens. Such new processes must also address the appropriation of private data by governments and private companies and its subsequent monetisation by private companies.
The NetMundial Process: A New Beginning, the democratic multi-stakeholder model
President Rousseff said that the NetMundial was to be a dialogue between Multilateralism and Multistakeholderism. Indeed the final outcome document in the roadmap section accepts “the full involvement of all stakeholders in their respective roles and responsibilities” and is a welcome restatement of the WSIS consensus and the Tunis Agenda.
The outcome document has further held, “Governments have primary, legal and political accountability for the protection of human rights”. The NetMundial outcome thus outlines a new phase within the Tunis Agenda, creating openings for specific improvements in the model of decision making that will be followed for future Internet governance. Employing these new openings will involve clear definitions and guidelines for the “democratic multistakeholder process” model.
NetMundial was clearly an attempt at institutionalizing multistakeholderism at the global level. This implementation of “multistakeholderism in practice” included the seemingly open format of “selecting” the organising committee members, the overtly open agenda setting, and the universally accessible online invitation for contributions. However, processes for consolidating these submissions and for finding common ground were somewhat contentious, and the initially open and participatory drafting process was in strong contrast to rather less open, endgame processes. On one hand, these could be seen (optimistically) as somewhat halting steps towards the delineation of a multistakeholder policy formulation process in an appropriately inclusive and ultimately democratic manner, or alternatively as providing evidence of fundamental flaws in how multistakeholderism becomes operationalized. In that sense, should the fact that the initial selection processes for NetMundial positions were flawed and lacked broader legitimacy, that the organizing processes themselves were evidently captured by certain interested parties, and that the multistakeholder drafting processes were, in the end, heavily dominated by big business producing certain unfortunate results, be viewed as flaws of an immature system or as features of a model which ultimately only works for the few?
In this regard, we see the reference to “democratic multistakeholder processes” in the document as a clear and compelling corrective. We now need to spell out what would constitute “democratic multistakeholder processes”. This of course includes the NetMundial call for further discussions on “different roles and responsibilities of stakeholders in Internet governance” and its two references to “respective roles and responsibilities”. This call should be taken as seeking an elaboration of what is a “democratic multistakeholder process” where, of course, corporations are not given equal status with citizens in decisions regarding public policy issues.
The Just Net Coalition believes that democracy can be ensured only if public policy decisions are made by or can be overridden through democratic processes and actions which derive their legitimacy from citizens directly exercising their will, or from representatives or institutions who are also democratically accountable to the citizens they represent.
Article 21 of the Universal Declaration of Human Rights (UDHR) and Article 25 of the International Covenant on Civil and Political Rights (ICCPR) provide that everyone has the right to take part in the conduct of public affairs (and thus in public policy decisions) directly or through freely chosen representatives. Stakeholder based processes should help widen the participatory base for engaging with such decision making processes but such a model cannot give corporations rights in policy-making equal to those of people, which would be in violation of the principles of democracy outlined in the UDHR and ICCPR.
Areas where the NetMundial outcome document is not satisfactory
We share the concerns of many civil society organizations regarding certain aspects of the NetMundial outcome document, see: http://bestbits.net/NetMundial-response.
Instead of a simple statement that mass surveillance is incompatible with the right to privacy and endorsing the "necessary and proportionate" principle, the outcome language has been watered down with qualifiers that do not go beyond the UN General Assembly resolution of November 2013, which was itself a compromise. However, we note that the NetMundial statement stresses that governments have primary legal and political accountability for the protection of human rights. Those rights must be protected online as well as offline, and globally as well as nationally, because the Internet is a global system, as noted in the NetMundial outcome document. Thus, governments must protect the privacy of the personal data not just of their own citizens, but also of the data of persons not directly subject to their jurisdiction. Human rights accountability of governments is global.
In the NetMundial outcome, there is no reference to cyber-weapons and cyber-peace. This is in spite of President Rousseff's call for addressing the issue of cyber-weapons.
Another significant omission in the document is that of net neutrality. Marco Civil – the Internet Bill of Rights -- in Brazil and the European parliament have both recently advanced a commitment to net neutrality. Unfortunately, it would appear that business interests were able to bury net neutrality in the “Future Plans” section of the NetMundial outcome document.
Two highly significant and in fact dangerous provisions related to copyright rights and copyright enforcement were introduced into the text at a very late stage on the basis of demands by business representatives. This happened well after it had been announced that new issues would be included only if there was consensus. Since clearly there was no consensus to add these provisions, they should not have been introduced into the NetMundial outcome document, and they are not validly part of it:
First, while references to the “right to access, share, create and distribute information” exist in numerous UN documents on a standalone basis(1), the reference to this right in the NetMundial document is limited to what is “consistent with the rights of authors and creators as established in law”. The right to share and communicate has now been circumscribed by the rights of "authors and creators", which appears to be an attempt to expand copyright by adding something called creators to authors, whereas only authors are recognized in international copyright law. Also, we consider it unacceptable that in a normative document a human right is sought to be limited by whatever be the existing law, whether or not the law is human rights compliant. Our belief moreover is that the length of current copyright protection must be drastically reduced, for example to 15 years; and that non-commercial downloading of material under copyright must be made legal.
Secondly, the topic of Internet intermediary liability limitations, having been introduced to protect the freedom of speech of Internet users, has now been coupled with “private policing” for enforcing Intellectual Property. Specific text has been added encouraging “cooperation among all stakeholders” in order to “address and deter illegal activity” which is in fact, well understood as coded language for private policing by Internet Service Providers (ISPs) and other intermediaries.
It is interesting to note that these two points directly correspond to the two points on which civil society had disassociated itself from the OECD's Principles for Internet Policy Making two years ago.
Further, we see no reference in the document to the issues which President Rousseff referred to alongside issues of Internet access: i.e. the social and economic programmes that Brazil has introduced to respond to the needs of the poor. The Internet and the overall digital economy have become highly significant elements in the distribution and re-distribution of wealth, employment and opportunities both within countries and globally. Unfortunately, no reference was made in the outcome document to the measures which must be taken to ensure economic justice in the context of increased global penetration by the Internet and the digital economy.
Finally, we note that the NetMundial language on the IANA(2) transition is very weak and essentially approves the current approach towards the transition. That approach was unilaterally established by the US government, with no prior open multistakeholder consultations, and it sets preconditions which were not subject to any open discussions. While we welcome a transition away from unilateral US government supervision of the IANA functions, we cannot welcome the unilateral way in which the conditions for the transition have been set, nor the fact that the US government will unilaterally decide whether or not the transition will take place. Also, since a possible outcome of this transition is that the IANA functions could be entrusted to ICANN(3) in a more permanent manner, it is not an example of good governance that ICANN itself seems to have been implicitly charged with managing the “open process with the participation of all stakeholders extending beyond the ICANN community” for “discussion about mechanisms for guaranteeing the transparency and accountability of those functions after the US Government role ends.”
Just Net Coalition (Coalition for a Just and Equitable Internet)
May 3, 2014
(1) The WSIS Declaration of Principles affirms that “everyone can create, access, utilize and share information and knowledge, enabling individuals, communities and peoples to achieve their full potential in promoting their sustainable development and improving their quality of life....”.
(2) IANA, the Internet Assigned Numbers Authority, is responsible in particular for the administrative processing of changes to the root zone for the Internet's Domain Name System (DNS).
(3) ICANN, the Internet Corporation for Assigned Names and Numbers, is currently operating the IANA function on the basis of a contract with the US government.
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