Our submission to the CSTD Working Group on Enhanced Cooperation

by Anja Kovacs

On 31 August, the Internet Democracy Project submitted its responses to the questionnaire that was made available by the Working Group on Enhanced Cooperation (WGEC) of the UN Commission on Science and Technology for Development (CSTD) last July. The questionnaire seeks to get input on the broad questions that constitutes the WGEC’s mandate: what is enhanced cooperation as per the Tunis Agenda for the Information Society, and how should it be taken forward? The Internet Democracy Project argued that not a centralised, but a distributed model of Internet governance should constitute the road ahead. Our complete responses can be found below.

1. Which stakeholder category do you belong to? #

Non-Government (civil society — other)

2. What do you think is the significance, purpose and scope of enhanced cooperation as per the Tunis Agenda? #

Paragraph 69 of the Tunis Agenda refers to the need to ensure, through greater cooperation among all stakeholders, that governments carry out on an equal footing their roles and responsibilities in Internet governance.

One aspect of this, which has received greatest attention from governments themselves, is to ensure equality among states in the global governance structure, wherever states play a role. This will likely require structural changes in some Internet governance institutions — in particular the internationalisation of Internet oversight, governments’ main concern at the time the Tunis Agenda was drafted and accepted.

It might also require, however, the addition of new processes and, possibly, institutions, to ensure that the wider range of international Internet-related public policies can be adequately addressed at the global level. To quote the Tunis Agenda: the enhanced cooperation mandate should include the development of globally-applicable principles on public policy issues’ (para 70) and also could envisage creation of a suitable framework or mechanisms, where justified’ (para 61).

However, what is an equally important aspect of paragraph 69 is its emphasis on close cooperation of states with other stakeholders. This is further strengthened by paragraph 70 and 71, which refer to the involvement of a wider range of stakeholders as well. Enhanced cooperation is thus not the domain only of governments. At the same time, paragraph 69 of the Tunis agenda explicitly excludes, however, the day-to-day technical and operational matters, that do not impact on international public policy issues from the enhanced cooperation agenda.

3. To what extent has or has not enhanced cooperation been implemented? #

While progress has been made in some areas over the past decade (for example, with respect to issues of critical Internet resources at ICANN, involving the role of the Affirmation of Commitments (AoC) and the Government Advisory Committee (GAC)), there are still numerous Internet-related public policy issues that require to be addressed at the global level and that do not have adequate processes involving all stakeholders in place.

In fact, over the last three years or so, we have witnessed a strong drive towards a monopolisation of Internet-related public policy making by governments. In some cases, this is asserted both nationally and globally. In other cases, this is mostly evident at the national level, with policies that undermine users’ rights being implemented in a growing number of countries; even in the latter situation, however, this has negative effects for global Internet governance, as it undermines the credibility of the governments in question when they claim to seek to stall greater government control in Internet governance globally.

This gains particular significance as the two camps that are, thus, seen to be emerging broadly align with those countries that already have control over the Internet (or are closely aligned with those that have), on the one hand, and those that do not, on the other. The resulting situation has increasingly posed an important obstacle for the further evolution of multistakeholderism and of enhanced cooperation involving all stakeholders.

It is at times difficult to escape the impression that civil society in particular have become pawns in a governments’ game (we wrote about this in more detail here). As a consequence, more or less across the board, governments are not drawing, while discharging their duties, on the input and expertise of global civil society to the extent that the enhanced cooperation mandate requires. This has important negative consequences for Internet users around the world, as greater cooperation among all stakeholders is required to ensure that governments discharge of their duties in ways that protect the rights of not only their own citizens, but of users world wide.

4. What are the relevant international public policy issues pertaining to the Internet? #

There is a long list of issues that are relevant to international Internet-related public policy. They include the protection and promotion of freedom of expression, the growing privatisation of censorship, access, access to information, the free flow of information, multilingualism, net neutrality, privacy, unchecked surveillance, cyber crime and cyber security, cross-border cooperation and jurisdiction issues and the continuation of the Internet as a global network, intermediary liability, regulation of global Internet businesses and the internationalisation of Internet oversight.

While all these issues are relevant to international Internet-related public policy, it deserves to be pointed out, however, that they do not all depend in equal measure on policy making at the global level for their resolution or implementation oversight. In light of the mechanism we propose under questions 6, 8 and 9, we therefore suggest that as a preliminary exercise, the exact aspect(s) of each issue that requires global policy making or oversight over implementation is/​are isolated and defined in more detail. This will also help to determine whether existing bodies could provide an adequate venue for doing so, or whether new processes and institutions are indeed needed.

5. What are the roles and responsibilities of the different stakeholders, including governments, in implementation of the various aspects of enhanced cooperation? #

We are in full agreement with a submission of members of the Best Bits network to the WGEC when it states that we do not think that the allocation of roles between the stakeholders that the Tunis Agenda established should be taken as definitive. We take it that, like the definition of Internet governance adopted in the Tunis Agenda which was specified as a working definition”, so too the definitions of the roles of stakeholders adopted in the Tunis Agenda were also working definitions that would be subject to review.

The definition of civil society’s important role … especially at community level” is particularly unhelpful. We contend that civil society’s role in contributing to the development of global public policy principles is much more integral than that definition suggests. In particular, there are cases in which governments are not inclined to uphold the human rights of Internet users, such as the rights of foreigners whose Internet usage is the subject of official surveillance. Civil society has a key role in representing the interests of such users, and others whose interests are otherwise poorly represented due to democratic deficits at national and international levels.

But further, the roles and responsibilities of stakeholders cannot be fixed in Internet governance (or probably in many other areas of governance either). For example civil society can in some instances represent specific marginalised communities or user or interest groups (e.g. the visually impaired). At other times civil society can be experts providing input and guidance on how to approach policy issues. At other times civil society can play a watch” role to monitor the behaviour of business or government in order to protect the public interest. And so on. Roles and responsibilities of stakeholder groups will depend on the type of process, and the specific interests involved and with a stake in the outcome of each process’.

6. How should enhanced cooperation be implemented to enable governments, on an equal footing, to carry out their roles and responsibilities in international public policy issues pertaining to the Internet? #

Current debates around this issue often give the impression that there are only two options where Internet governance arrangements are concerned: the status quo and a more centralised form of governance, the latter often (though not always) imagined as involving greater government control. This is, however, a fallacy. While it is clear that a more inclusive system of Internet governance needs to be developed — and the status quo, thus, is not an option – centralisation is not a good alternative.

This is because it mistakes the Internet for an issue, rather than understanding it as a space. This is important to highlight for two reasons. First, it emphasises that the Internet’s boundaries are different from those in the offline world (neither do they coincide with geographical boundaries nor are they of the same nature), which clearly has implications for the ways in which its governance should be structured. But second, it also makes self-evident the mistake in thinking that one body, and one set of experts, could possibly be responsible for effective policy making on all Internet-related matters. As the Internet is not an issue but a space, high-quality international public policy that addresses the concerns of even the most marginalised of users is unlikely to emerge from a top-down process that is led by and vests decision-making power in one single body, as such a centralised process will be able to accommodate only a very limited number and range of experts (and will likely also frequently consult the same small circle of people).

What we require instead, therefore, is a distributed form of governance, which will ensure that a far wider range of actors and a far more substantive amount of expertise will be drawn on in international Internet public policy making. Rather than one single global Internet policy making body, we require a distributed or networked form of governance, in which different multistakeholder networks of experts develop policy on the issues that fall within their particular expertise. To help further such efforts and assist in making connections between issues and networks where necessary, one global body could function as a clearing house for all such efforts, but this body should not function as a decision-making body per se.

By formally endorsing and supporting a distributed or networked form of governance (the seeds of which are already in place), all stakeholders would also be able to already start moving forward in a more concerted fashion on issues that attract less controversy, such as multilingualism and access, while time can be taken to evolve models and solutions acceptable to all stakeholders — including all governments — on more controversial issues, such as cyber security. Seeing the great controversy that proposed one-size-fits-all solutions attract at present, agreement on centralised systems will likely take a long time to reach, leaving other important issues, on which work could progress with far less trouble, hanging in the mean time — with only adverse effects for Internet users.

7. How can enhanced cooperation enable other stakeholders to carry out their roles and responsibilities? #

The mechanism for enhanced cooperation proposed here will allow civil society in particular to fulfill its own roles and responsibilities in a more effective manner. As discussed under question 6, and as illustrated by actual civil society participation and involvement in Internet governance over the past decade, the definition of civil society’s role as included in the Tunis Agenda is far too restrictive, and as such inappropriate. Beyond playing a role at the community level, civil society also functions as a watch dog, provides expert inputs and defends users rights at the national and global level. An enhanced cooperation mechanism that is effective would ensure that mechanisms are built in for civil society to play this variety of roles, rather than having to advocate for such mechanisms to be included on an ad hoc basis (and often with limited success, the lipservice widely being paid to governments of various political leanings notwithstanding).

This does not mean that civil society, or any other stakeholder, will usurp governments’ roles and responsibilities, but that it will be enabled to play its own role to the fullest and, thus, aid governments’ in playing theirs.

8. What are the most appropriate mechanisms to fully implement enhanced cooperation as recognized in the Tunis Agenda, including on international public policy issues pertaining to the Internet and public policy issues associated with coordination and management of critical Internet resources? #

As noted under question 6, we believe that the way forward to implement enhanced cooperation lies in a constituting a system of distributed Internet governance. This would entail networks of actors across stakeholder groups working together on making policies around an issue related to the Internet that falls within the specific domain of expertise of those actors (rather than a small group of actors taking the lead on all international Internet public policy issues, simply because they are of relevance to the Internet’).

While the exact nature of the network and the process followed (including the extent of institutionalisation) will be determined at least to some extent by the problem at hand, details of the form such a system will take obviously require further discussion. At the very minimum, however, all processes and networks thus initiated should adhere to the following principles:

  • They have participation from all stakeholder groups.
  • They are inclusive, transparent and accountable to the wider Internet governance community, with sufficient and timely notice and background being provided to all stakeholders on modalities, aim/​purpose and significance.
  • They are global in nature. Solutions’ developed in fora with a limited geographical reach do not amount to international Internet public policy making as envisioned by the enhanced cooperation agenda. In order to be global, substantial representation across regions is essential.
  • They are arranged in such a way that none of the stakeholders or regions can determine the outcome without the cooperation of all other stakeholder groups and regions. Note that this will still leave space, for example, for governments to be the main decision makers once a mechanism that all stakeholder groups and regions have agreed on to address a particular issue has been put into place.

It deserves to be pointed out that by requiring that no stakeholder or region can determine the outcome of a process without the cooperation and agreement of others, such arrangements would also ensure that the global character of the Internet is preserved, rather than dissolving in favour of a set of interconnected national or regional networks, each functioning according to their own modalities.

9. What is the possible relationship between enhanced cooperation and the IGF? #

While we believe that it would be detrimental for global Internet governance to have one body that leads all efforts at international Internet public policy making, we also believe that it is important to have a venue where ongoing and future processes and their outcomes are presented to and discussed with a wider audience, and where those who want to start a new initiative easily find a wide range of actors to share their ideas with and explore the possibility of taking their initiative forward. As it already brings together the widest range of actors in the Internet governance space, the IGF is ideally suited to fulfil this role of clearing house. At the same time, having such a role would also aid to sharpen the mandate of the IGF itself, and ensure that its contribution to Internet governance would significantly increase as foreseen by the Working Group on IGF Improvements.

The inclusion of structured feedback processes on ongoing issue-specific Internet governance processes in this restructured IGF is essential, as it will guarantee that a wider audience can voice its opinions on proposals as they are being evolved. Some of the proposals of the Working Group on IGF Improvements provide a helpful starting point for thinking on how to channel such feedback in an organised manner at the IGF in practice.

If the IGF is accorded this function, it is likely to lead to a more specific agenda for the Forum and a greater perceived relevance among a range of actors. Accordingly, while a core group of participants will likely to continue to attend the Forum on a yearly basis, a considerable segment of participants will likely shift from year to year, depending on their own expertise and the central issues that are discussed at that time. In the long term, Internet governance will benefit from such an enlarged, even if shifting, Internet governance community, as it will further ensure that it can draw on a great range of expertise.

10. How can the role of developing countries be made more effective in global Internet governance? #

It is often argued, or implied, that the limited participation of developing country governments and civil society is mainly due to a lack of capacity. While capacity building efforts can indeed be very helpful (and not for developing country actors alone), we believe that this is not the primary reason why such countries do not get involved more closely in Internet governance.

Instead, as illustrated by debates during the WTPF, we believe that one of the main reasons is the fact that Internet governance processes at present are not sufficiently tailored to deal with the priorities of these governments and are not sufficiently clear about their aims, purpose, and intended outcomes. Where faced with limited resources, both governments and civil society from developing countries will prefer to allocate such resources to processes in which there at least seems a reasonable chance of a likely benefit to their own priorities and work.

Though some argue that it will be difficult for developing countries governments and civil society to participate in a more distributed structure of Internet governance due to resource requirements to be able to do so effectively, we therefore believe the reverse is true. A paucity of resources means that developing country representatives from any stakeholder group often are reluctant to tie into existing processes as it is not clear enough to them how participation will benefit their own priorities and work precisely because existing processes tend to address a hotchpotch of issues.

A distributed structure of Internet governance with well-defined aims and purposes will resolve this problem as it will make it much more obvious to developing country actors (as well as others) which processes are worth their time. If the participation of developing countries’ governments and civil society in Internet governance is to be increased, it will only happen by offering them avenues of participation that have immediate and clear value, with this value outweighing any costs (it is notable that other actors that have been notoriously absent from Internet governance processes, such as representatives from small and medium enterprises, might benefit in the same way).

For additional improvements required, please see our answer to question 11.

11. What barriers remain for all stakeholders to fully participate in their respective roles in global Internet governance? How can these barriers best be overcome? #

For civil society (especially, though not solely, for those from the Global South), there are two particularly significant barriers to effective participation. The first one concerns procedural matters: avenues for participation all too often remain either extremely limited or absent, and where they are made available, their exact nature, modalities and significance often remain unclear until the very last moment (the Independent Experts Group that was put together in preparation for the ITU’s WTPF, while a welcome initiative as such, provides a good recent illustration of such shortcomings). For developing country civil society, which frequently has to manage with limited resources both in terms of money and people, ill-defined and/​or last-minute processes make effective planning and, thus, participation impossible (we believe that the same is true of many developing country governments).

The issue is exacerbated by the fact that most Internet governance meetings take place in the developed world, as a consequence of which the financial investment to attend is indeed considerable, and this brings us to a second issue: that of funding to enable participation. Unless more funding is made available to enable participation in at least key events in a process, multistakeholderism – be it under the mantle of enhanced cooperation or otherwise – will be stillborn. Remote participation, while valuable, cannot replace all in-person attendance at key meetings in an Internet governance processes for those who aim to follow such processes closely.

While a wide-range of governments and international institutions now pay extensive lip service to multistakeholderism, until the above issues are resolved, effective participation of global civil society will remain impossible.

12. What actions are needed to promote effective participation of all marginalised people in the global information society? #

There are two preconditions to the effective participation of marginalised people in the global information society: access and the substantive enjoyment of the right to freedom of expression. Access includes both access to the Internet and access to knowledge and thus requires the free flow of information (including through net neutrality). The right to freedom of expression includes the right to seek, receive and impart information. In addition, especially for marginalised people, it is crucial that they can both access the Internet and express themselves anonymously, as it is often the public revealing of certain aspects of their identity (such as sexual orientation, race or class) that makes them particularly vulnerable.

Between access and freedom of expression, there is no hierarchy, as both are crucial to fully tap into the empowerment that the Internet can provide and the ways in which it can support the realisation of not only civil and political but also social, economic and cultural rights. If one is to use the Internet to demand for one’s social, economic and cultural rights, freedom of expression is essential.

The need to harness the two together is especially urgent as the Internet is simultaneously used by States to dramatically increase surveillance over their citizens. As marginalised people tend to be particularly easy victims of such surveillance and are frequently the first to be negatively affected, it is not only important that such surveillance is checked by high thresholds. In addition, since their comparatively greater vulnerability will remain, it is crucial that their Internet access is accompanied by the strongest protections of the right to freedom of expression, access to knowledge and the free flow of information. Again, the right to anonymity is a crucial aspects of this mix.

13. How can enhanced cooperation address key issues toward global, social and economic development? #

(Not answered)

14. What is the role of various stakeholders in promoting the development of local language content? #

(Not answered)

15. What are the international Internet-related public policy issues that are of special relevance to developing countries? #

As a large proportion of the most marginalised people in the world live in developing countries, their issues are and should be among those that are of most concern to the developing world. Though there are further concerns related to the realisation of social and cultural rights and, relatedly, to development, this means, as explained under question 12, that access to the Internet and to knowledge, the free flow of information (including through network neutrality) and effective enjoyment of the right to freedom of expression (including anonymously) constitute the very minimum of a developing country agenda.

Where marginalised people specifically from developing countries are concerned, copyright regimes deserve particular notice, however. Many of the initiatives that are being pushed by western countries, including through bilateral and regional trade agreements, are deeply inimical to the interests of developing countries and their citizens and significantly undermine the empowering potential that the Internet can have for them.

16. What are the key issues to be addressed to promote the affordability of the Internet, in particular in developing countries and least developed countries? #

(Not answered)

17. What are the national capacities to be developed and modalities to be considered for national governments to develop Internet-related public policy with participation of all stakeholders? #

(Not answered)

18. Are there other comments, or areas of concern, on enhanced cooperation you would like to submit? #

(Not answered)