[governance] fwd. The WSIS Deal

[Adam Peake (ajp@glocom.ac.jp)]

Subject: 	The WSIS Deal
Date: 	Wed, 16 Nov 2005 13:15:38 -0500
From: 	Michael Geist <mgeist at pobox.com>
To: 	dave at farber.net
References: 	<p0623090fbf9745015ebd@[192.168.1.254]>
<6471A509-BBF2-4987-AAD5-BEE39223EBBA at farber.net>



Dave,

My thoughts on yesterday's WSIS deal - feel free to post if you see fit.

MG

Online at
<http://www.michaelgeist.ca/index.php?option=com_content&task=view&id=1010>

The WSIS Deal

There is considerable coverage this morning (or this evening in Tunis)
on the last minute WSIS deal struck yesterday.  The gist of the
coverage rightly reports that the U.S. emerged with the compromise
they were looking for as the delegates agreed to retain ICANN and the
ultimate U.S. control that comes with it (note that there is a lot in
the WSIS statement that may ultimately prove important but that is
outside the Internet governance issue including the attention paid to
cybercrime, spam, data protection, and e-commerce).

This outcome begs the questions - what happened? And, given the
obvious global split leading up to Tunis, what changed to facilitate
this deal?

It seems to me (as someone on the scene but outside the process), that
there at least four factors at play:

First, the U.S. simply had a very strong hand and played it well.
Changes to the governance structure ultimately requires U.S. agreement
since possession is even more than the proverbial 9/10th of the law. 
The U.S. had loudly indicated that it was not prepared to make
concessions.  During the negotiations at the PrepCom it adopted a very
hard line - even raising the prospect of pulling back on ccTLD
sovereignty or turning over the Internet Governance Forum to a private
sector group like ISOC.  Without a credible threat (the threat being
the creation of alternate root), the U.S. was able to maintain its
position and ultimately force everyone else to deal.

Second, the European Union may not have been as committed to change as
it publicly indicated.  While there is no doubt that some countries
strongly believed in change, it seems likely that others were more
comfortable with the current system.  Given the opportunity for
compromise, the EU decided to back down and accept a deal that all
could live with.

Third, the delegates have found a diplomatic way to leave this issue
for a future fight.  The creation of the governance forum sounds much
like WSIS itself - multilateral, multi-stakeholder, non-binding, U.N.
created, and able to address a wide range of Internet and technology
policy issues.  At a minimum, the governance forum certainly looks
like the obvious method for continuing the work that WSIS started.
Notwithstanding the creation of a review clause after five years,
there is every reason to think that the governance forum will provide
the venue for continuing dialogue on possible Internet governance
reform.

Fourth, the deal may not be as great for the U.S. as the current spin
suggests.  The U.S. is certainly happy with Paragraphs 55 and 58 which
provide that:

55.      We recognise that the existing arrangements for Internet
governance have worked effectively to make the Internet the highly
robust, dynamic and geographically diverse medium that it is today,
with the private sector taking the lead in day-to-day operations, and
with innovation and value creation at the edges.

58.    We recognise that Internet Governance includes more than
Internet naming and addressing. It also includes other significant
public policy issues such as, inter alia, critical Internet resources,
the security and safety of the Internet, and developmental aspects and
issues pertaining to the use of the Internet.

This gives the U .S. ongoing control over ICANN that in turn will
administer the domain name system along with a broad definition of
Internet governance that goes well beyond the domain name system
issues.

The deal does not leave the other side empty-handed, however, as there
is language that supports global concerns involving sovereignty and
oversight.  In particular:

1. Paragraph 35 recognizes that "policy authority for Internet-related
public policy issues is the sovereign right of States. They have
rights and responsibilities for international Internet-related public
policy issues"

2. Paragraph 38 provides strong support for the Regional Internet
Registries with language that says "we call for the reinforcement of
specialized regional Internet resource management institutions to
guarantee the national interest and rights of countries in that
particular region to manage its own Internet resources, while
maintaining global coordination in this area."

3. Paragraph 63 guarantees ccTLD independence by stating that
"countries should not be involved in decisions regarding another
country's country-code Top-Level Domain (ccTLD). Their legitimate
interests, as expressed and defined by each country, in diverse ways,
regarding decisions affecting their ccTLDs, need to be respected,
upheld and addressed via a flexible and improved framework and
mechanisms."

4. Paragraph 68 confirms the desirability of a multilateral system
based on equality with the recognition that "all governments should
have an equal role and responsibility, for international Internet
governance and for ensuring the stability, security and continuity of
the Internet. We also recognise the need for development of public
policy by governments in consultation with all stakeholders."

When combined with the creation of the governance forum, which could
have as much binding effect as WSIS, supporters of the deal may argue
that there is a platform to allow for a continued emphasis on global
Internet governance concerns.  Certainly talk about guarantees for the
national interest on RIRs and improved frameworks for ccTLDs
independence provide reason to believe that the status quo is not an
option.  The safe bet is that the future of the Internet governance
issue lies whether the forum emerges into a powerful venue for change
and whether/how ICANN responds.

--
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa, Faculty of Law
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
mgeist at pobox.com              http://www.michaelgeist.ca

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