<html><head></head><body style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; "><div>A blog entry that I just posted to <a href="http://igfwatch.org">igfwatch.org</a>. The organisation it describes is intended to be compatible with Norbert's proposal for an Enhanced Cooperation Task Force, though it isn't named as such below.</div><div><br></div><div><b>Picking up where the IGF left off: our role in the future of Internet governance</b></div><div>Jeremy Malcolm, 4 July 2012</div><div><a href="http://igfwatch.org/discussion-board/picking-up-where-the-igf-left-off-our-role-in-the-future-of-internet-governance">http://igfwatch.org/discussion-board/picking-up-where-the-igf-left-off-our-role-in-the-future-of-internet-governance</a></div><div><p>Internet governance is reaching a crisis point. Internet-related
public policies are being shaped by governments behind closed doors,
sparking global street and online protests over agreements such as the <a href="http://tppwatch.org" target="_self">Trans-Pacific Partnership Agreement</a> (TPPA) and <a href="http://www.guardian.co.uk/technology/2012/jul/04/acta-european-parliament-votes-against?newsfeed=true" target="_self">Anti-Counterfeiting Trade Agreement</a> (ACTA). Other governments, excluded from these fora, are taking recourse to the <a href="http://www.theregister.co.uk/2012/06/22/itu_plans_internet_regulation/" target="_self">International Telecommunications Union</a> (ITU), or threatening to <a href="http://tools.ietf.org/html/draft-diao-aip-dns-00" target="_self">create their own Internet ghettos</a> governed in a more closed, government-led process. <a href="http://arstechnica.com/security/2012/06/flame-malware-created-by-us-and-israel/" target="_self"> States are using malware</a> to wage cyber warfare, at the same time as the use of such malware by criminals is taken as justification for new <a href="http://www.bbc.co.uk/news/uk-politics-17576745" target="_self">incursions on personal freedoms</a>. They are also putting forward new laws and regulations, such as <a href="http://www.pcworld.com/article/248298/sopa_and_pipa_just_the_facts.html" target="_self">SOPA and PIPA</a> in the US and the <a href="http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet" target="_self">Indian Internet Intermediary Guidelines</a>, that seem to contradict their own public statements on Internet freedom, and could seriously impede global information flows.</p><p>Corporations, too, have been taking
policy decisions without public oversight or accountability – such
as the <a href="http://wikileaks.org/Banking-Blockade.html" target="_self">financial blockade against Wikileaks</a>, and the <a href="http://www.bbc.com/news/technology-14294517" target="_self">three</a> (or <a href="http://www.techdirt.com/articles/20110707/10173014998/major-us-isps-agree-to-five-strikes-plan-rather-than-three.shtml" target="_self">five</a>)
strikes agreements reached between ISPs and representatives of
content owners. This is not to say that good decisions aren't also
being made – for example, there has recently been a profusion of
relatively good <a href="http://igcaucus.org/links" target="_self">statements of Internet principles</a> by various
stakeholders, and companies such as <a href="http://www.google.com/transparencyreport/" target="_self">Google</a> and <a href="https://support.twitter.com/articles/20170002" target="_self">Twitter</a> have adopted
some good internal policies to hold governments and industry to
account for their attacks on user privacy and freedom of expression.
But these individual statements and policies hang unsupported by any
common public policy framework that could help provide coherence
across industry sectors and regions, as well as offering a standard
for assessment and accountability.</p><p>The transnational (border-crossing)
nature of the Internet demands that we have the ability to develop
consistent global policies on issues that impact upon online rights
and freedoms, and democracy demands that this be done in a manner
that is inclusive of the individuals and transnational interest
groups who are affected by those policies. Since neither the
application of those policies nor the interest groups affected by
them are neatly situated within national borders, governments alone
cannot be the arbiters of these policies. But equally, by avoiding
the imposition of a top-down intergovernmental solution (even if one
existed, which it doesn't), we should not fall into the trap of
accepting the <em>status quo</em> whereby governments and corporations
alike develop their own public policies in an isolated and
uncoordinated fashion, without reference to common standards of
transparency, participation, or online norms grounded in human
rights.</p><p>Whilst the problem of regulatory
incoherence as described above is widely acknowledged, there is much
lack of clarity about the solution. In fact there is little more
than a two-word catchphrase, “enhanced cooperation”, coined at
the World Summit on the Information Society (WSIS) in 2005 to
describe what should be done to fill what its Working Group on
Internet Governance (WGIG) <a href="http://www.wgig.org/docs/WGIGREPORT.doc" target="_self">described</a> as “a vacuum within the
context of existing structures, since there is no global
multi-stakeholder forum to address Internet-related public policy
issues. ” As a May 2012 <a href="http://unctad.org/en/Pages/MeetingDetails.aspx?meetingid=61" target="_self">consultation meeting</a> on the topic made
evident, this catchphrase means different things to different people,
ranging from simply stronger efforts at cooperation between existing
fora and stakeholders, through to the establishment of a new UN-based
Committee on Internet Related Policies.</p><p>The latter option has sparked
understandable (and probably insurmountable) fears, especially by the
private sector, technical community, and OECD governments, but also
by many ordinary Internet users. They fear firstly a <a href="http://news.cnet.com/8301-1009_3-57444629-83/u.n-takeover-of-the-internet-must-be-stopped-u.s-warns/" target="_self">governmental
takeover</a> of existing Internet governance functions of bodies such as
ICANN and the IETF, that currently take place through private-sector
and community-led processes, and with the light touch oversight of
the US government. They also fear that outside of these technical
areas, heavy-handed governmental regulation of Internet policy issues
(particularly by <span>repressive</span>
governments) would stifle or challenge the network's lightweight,
adaptive and innovative nature.</p><p>But whilst these fears are not without
basis, there is a growing acceptance that the former option – the
<em>status quo</em> – will be no better over the long term. Joining
academics, NGOs and development activists who have been saying the
same thing for years, industry stakeholders too are now beginning to
acknowledge that there needs to be some kind of new multi-stakeholder
Internet public policy body as a counterpart to and complement for
the technical bodies such as ICANN and the IETF. Analyst Paul Budde,
for example, <a href="http://www.circleid.com/posts/20120620_is_the_future_of_the_internet_at_risk/" target="_self">wrote last month on CircleID</a> that such an “internet
community organisation” could, if “properly funded and stocked
with the right international people to manage what is needed to watch
over internet governance,” be “an excellent partner in the
broader community of international organisations”.</p><p>So, this is the key. A new
organisation is needed, but none of them that are on the table right
now. It shouldn't be based in the UN, shouldn't detract from the
roles of ICANN and the IETF, and shouldn't stifle the net's open,
organic and user-driven fundamentals. Following the WSIS process
criteria, its operation should be transparent, participatory and
inclusive. It should be able to develop (but not to enforce, since
that is not the Internet way) statements of norms and principles to
guide policy-makers along lines congruent with the rough consensus of
all participating stakeholders, in areas where such consensus is
possible. It should also be able to assess (again, in a non-binding
way) the compliance of other policy processes with those norms and
principles – for example, offering a standard against which the
ACTA or TPPA negotiations could be judged.</p><p>Beyond developing and assessing
compliance with these general high-level norms, it could also form
working groups to address <span>specific
issues, such as the Internet-related parts of ACTA and the TPPA, as
an alternative to the </span><em>ad hoc</em><span>
intergovernmental-only negotiations on these issues as occurs at
present. Another case example could be the development of online
privacy principles to guide standards bodies such as the IETF and W3C
in developing technical specifications. At the moment, these bodies,
(and ICANN too, in respect of naming and numbering issues), are
attempting to conduct their own public policy discussions, but by
reason of the narrow participation that they draw from non-technical
users, their success has been <a href="http://www.w3.org/2011/tracking-protection/" target="_self">decidedly mixed</a>. As well as
issue-based working groups, the new organisation could form regional
working groups, to address at a regional level issues that it is not
practical or relevant to address more broadly.</span></p><p>What would the new organisation <em>not</em>
do? Naturally, it would not take over the naming and numbering
functions of ICANN. It would not even exercise oversight over those
functions, since being a voluntary organisation, it could have no
possible mandate to do so. It <em>might </em><span>recommend
processes by which political oversight of ICANN's functions could be
internationalised at some future time (and maybe possibly even
suggest a role for itself in that transition), because that is
certainly a public policy issue of considerable political importance
to many stakeholders, that can't usefully be conducted within ICANN
itself. But it would not have the power to actually make any changes
to ICANN's functions, or indeed to do </span><em>anything</em><span>.
Its recommendations would be purely advisory, like the Requests for
Comment (RFCs) of the IETF.</span></p><p>Now the obvious question is, shouldn't
the Internet Governance Forum (IGF) be doing all this? Yes, of
course it should. The <a href="http://www.itu.int/wsis/docs2/tunis/off/6rev1.html" target="_self">Tunis Agenda</a> agreed at WSIS clearly specifies
that the IGF's role should include making recommendations on emerging
issues, and to promoting and assessing, on an ongoing basis, the
embodiment of WSIS principles in Internet governance processes.
These are almost exactly the two roles of norm-setting and evaluation
that I set out for the new organisation above. (Of course, the IGF
also does other things, and a few of of them well, but as to these
two elements of its mandate, it has been a complete wash-out.)</p><p>But whilst the IGF should take up these
roles, we can't expect it to do so. Why not? Because the IGF is a
UN body, and therefore despite how innovative it was originally
mandated to be in its format and functions, in practice it has
quickly become shackled with the limitation of only acting by
UN-style (essentially full) consensus. If any of the stakeholders
object to the IGF making policy recommendations – which certain of
them reliably do – then it simply won't do so. In order for
enhanced cooperation to work, it can only be a voluntary mechanism to
which stakeholders who <em>want </em><span>to
collaborate on the development of policy can </span>opt-in, and which
those who don't wish to can ignore. The IGF as it has evolved is not
such a beast.</p><p>This is not that it <em>could never</em>
have worked; it could, if it had been designed appropriately to make
decisions on the basis of a rough consensus, developed through a
deliberative democratic process utilising facilitated online
discussions and small group interactions. But that was never tried,
and the IGF has since become ossified along the more traditional
lines upon which its executive staff Nitin Desai and Markus Kummer,
and those with influence over them in those early days, designed it.
That significant reform is no longer possible is illustrated by fact
that even the <a href="http://www.unctad.info/en/CstdWG/" target="_self">token improvements</a> most recently recommended for the
IGF weren't raised by its own Multi-stakeholder Advisory Group (MAG),
but by a working group of the Commission on Science and Technology
and Development (CSTD). Being fully intergovernmental and operating
on a full consensus basis, the CSTD couldn't even recommend the
formation of working groups for the IGF; still less the reforms it
would need to carry out enhanced cooperation.</p><p>Having said all that, the new
organisation will need to work closely with the IGF. The global,
regional and national IGFs will have an important (indeed probably
the <em>most</em><span> important)
agenda</span>-setting and capacity building role for the community
that will develop policy recommendations through the new
organisation. The IGF, in that role, with its completely open
structure and lack of formality, could in fact become more important
than ever before. But by virtue of those very aspects, the IGF in
its present form will not make be able to make policy recommendations
or to assess the compliance of other Internet governance bodies with
agreed procedural norms.</p><p>But just because the IGF is not
qualified to do so, that doesn't necessarily mean we need a brand new
organisation – surely there might be some other existing body that
could develop and promulgate global Internet policy norms? But if
so, where is it? Not <a href="http://www.icann.org/" target="_self">ICANN</a>; public policy issues outside of
technical naming and numbering functions lie outside its mandate.
The <a href="http://www.igcaucus.org/" target="_self">Civil Society Internet Governance Caucus</a> (IGC) is not up to the
task; it is not multi-stakeholder and lacks a sufficiently formal
structure. The <a href="http://www.isoc.org/" target="_self">Internet Society</a> (ISOC) and the <a href="http://www.itu.int/" target="_self">ITU</a> are not
multi-stakeholder entities, and are in denial about the need for any
enhanced cooperation process, as they insist that they are already
doing it. The <a href="http://globalnetworkinitiative.org/" target="_self">Global Network Initiative</a> excludes governments, and in
any case has its own separate and narrower role (which would
continue, informed by the new organisation). The <a href="http://www.oecd.org/" target="_self">OECD</a> has a
reasonable consultative structure, but is a club of rich countries
that the developing states won't accept. Similarly the <a href="http://www.coe.int/" target="_self">Council of
Europe</a> (though its Cybercrime Convention was opened to non-member
states).</p><p>So we need to start again. In doing
so, there are four essential characteristics around which the new
organisation should be designed.</p><p>First, it must be voluntary; both in
its participation, and in the force that its recommendations carry.
This should be a familiar structure for those versed in Internet
governance, as the <a href="http://www.ietf.org/" target="_self">IETF</a> operates in that way. Indeed, the IETF was
the model which I originally had in mind when I approached the
doctoral research that became <a href="http://press.terminus.net.au/igfbook" target="_self">my book</a>. Similar proposals for a
policy body based on the IETF (such as ISOC's old <a href="http://web.archive.org/web/20050209065808/http://www.istf.isoc.org/" target="_self">Internet Societal
Task Force</a> (ISTF)), go back even further, and others continue to be
made today. However, the structure I eventually proposed for a
multi-stakeholder Internet governance network differs from the IETF
in several important respects, the most critical of which are
reflected in the remaining criteria below.</p><p>Second, if the new organisation is not
UN-linked (which apart from being unacceptable to many Internet
users, is also now political unlikely, since the CSTD declined to
convene a multi-stakeholder working group to consider enhanced
cooperation mechanisms), there is no reason why this organisation
should not be established by the community. In short, Internet users
have to take the initiative of proposing this positive agenda for
Internet governance, just as they did in defeating SOPA, PIPA and
ACTA. Indeed, at this point, if civil society does not take the lead
(perhaps supported by a handful of progressive companies or
governments), it probably won't happen at all.</p><p>Third, there needs to be a defined role
for governments within the new organisation. Is it possible for
governments to participate within a private governance organisation?
Of course; think of ICANN itself, in which governments participate
through the Government Advisory Council (GAC). Indeed, the idea of a private organisation carrying
out a global public good, with the participation and support of
governments through the international system, goes back centuries, at
least to the 1863 formation of the International Committee of the Red
Cross. Whilst the participation of governments may still alarm some
Internet activists, this is why the second principle, that the
organisation be established by the community, is so critical.</p><p>Fourth, in line with the Tunis Agenda
of WSIS which highlights the distinct contributions that stakeholders
have to offer in their respective roles, the structure of the
organisation should reflect this, through an executive body with
formal representation of governmental, private sector and technical
community, and civil society members. Though the IGF's structure
does not do so, that of other multi-stakeholder networks do – good
examples include the <a href="http://www.fsc.org/" target="_self">Forest Stewardship Council</a> and the <a href="http://www.fairlabor.org/" target="_self">Fair Labor
Association</a>. In practical terms, this should mean that decisions of
the body, such as the adoption of principles, should be made by rough
consensus within each class of membership, as well as overall.</p><p>A further corollary is that each
stakeholder group will retain a measure of independence within its
own sphere of competence. Thus for example, governmental members
might reserve the capacity to take principles adopted by the
organisation, and convert them into an intergovernmental agreement.
This is much like the Council of Europe did in 2011, with the
adoption of a <a href="https://wcd.coe.int/ViewDoc.jsp?id=1835773" target="_self"><span>Declaration by the
Committee of Ministers on Internet governance principles</span></a><strong>,</strong>
that had been developed through a multi-stakeholder process. (On the
other hand, there are good reasons to limit the development of norms
by the new organisation to high-level, soft law instruments, in order
to avoid distractive wrangling over treaty language.)</p><p>Such an organisation, possessing a
structure that recognises the role of governments but does not
privilege them over other stakeholders, and a constitution that
provides for the accountability and transparency that the Internet
community expects, would distinguish the new organisation both from
the ineffective IGF, and from the unrepresentative ACTA and TPPA
negotiations. It would fill the vacuum in Internet governance that
WGIG observed in 2005, and bring to an end the ongoing wrangling over
enhanced cooperation that continues to this day. Best of all, if
this new organisation is established by the community, then we don't
need to wait for anyone's approval to to it: we can start right now.</p><p>Watch this space.</p></div><br><div apple-content-edited="true">
<div style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; "><div style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; "><div style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; "><span class="Apple-style-span" style="color: rgb(0, 0, 0); font-size: medium; border-collapse: separate; font-family: Helvetica; font-style: normal; font-variant: normal; font-weight: normal; letter-spacing: normal; line-height: normal; orphans: 2; text-align: -webkit-auto; text-indent: 0px; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px; -webkit-border-horizontal-spacing: 0px; -webkit-border-vertical-spacing: 0px; -webkit-text-decorations-in-effect: none; -webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; "><div style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; "><span class="Apple-style-span" style="border-collapse: separate; font-family: Helvetica; font-style: normal; font-variant: normal; font-weight: normal; letter-spacing: normal; line-height: normal; orphans: 2; text-align: -webkit-auto; text-indent: 0px; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px; -webkit-border-horizontal-spacing: 0px; -webkit-border-vertical-spacing: 0px; -webkit-text-decorations-in-effect: none; -webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; "><div style="word-wrap: break-word; -webkit-nbsp-mode: space; -webkit-line-break: after-white-space; "><div>-- <br><p style="color: rgb(0, 0, 0); font-size: medium; margin-bottom: 12pt; "><b><span style="color: black; ">Dr Jeremy Malcolm<br>Senior Policy Officer</span></b><br><span style="font-size: 9pt; color: black; ">Consumers International</span><br><span style="font-size: 9pt; color: gray; ">Kuala Lumpur Office for Asia-Pacific and the Middle East<br>Lot 5-1 Wisma WIM, 7 Jalan Abang Haji Openg, TTDI, 60000 Kuala Lumpur, Malaysia<br>Tel: +60 3 7726 1599</span></p></div></div></span></div></span><span class="Apple-style-span" style="border-collapse: separate; 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