[governance] The Karl-Jeremy exchange

Mon Jun 4 07:24:56 EDT 2007

Karl, Jeremy,

Your brief exchange below is the most concise expression so far of an
ongoing debate on this list from its very inception. I thought it was an
opportunity worth seizing to, very tentatively, explain why, behind your
apparent "fundamental different views of what this thing "Internet
governance" is", I believe you actually simply describe different and
complementary aspects of the same reality, in large part because of your
personal history (hope neither of you will be offended by what's below). I
hope this will help all of us understand better the different facets of the
task we are all facing and the long-term promises of the fragile experiment
that the IGF represents.

1) On your apparent opposition

This exchange seems to highlight all the dichotomies we are constantly
grappling with (below are voluntary exaggerated versions of the actual
positions). This covers in particular an apparent opposition :
- between a limitation to "techno-internet matters" and an extension to
issues related to usage in a much broader sense
- between the historic technical group to which we owe the development of
this amazing infrastructure and the political scientists who now want to
address the organization of the global polity(ies) that emerged because of
this tool
- between the proponents of as little regulation as possible (when a
"unified binding decision-making single structure is absolutely required")
and those who believe a diversity of "regimes" and structures with various
levels of enforcement capacity is required to address a broad diversity of
issues
- between those who fear a too broad notion of "Internet Governance" may
lead to Global Governance in general with an overtone of government control
and those who hope that this is indeed a laboratory for other governance
frameworks at the global level that will precisely avoid the traditional,
exclusively intergovernmental approach.

2) The personal factors

As an advertisement I recently saw in an airport says : "a different
viewpoint is often a view from a place where you are not". Your viewpoints
are not contradictory : they describe different facets of the same reality,
observed by two people with a different personal history. Indeed, it should
not be surprising that the Karl-Jeremy exchange below is between individuals
from two completely different generations and personal background.

Karl has a decades-long involvement in those issues. He has witnessed the
evolutions of the Internet from the onset and knows that the original very
light framework based on simple interoperability protocols and open,
peer-based and rough consensus decision-shaping processes was the key to the
Internet success. To him (apologies for putting words in your mouth, Karl,
correct me if I say anything you don't like), understandably, the WSIS, when
it appeared on the horizon, could only trigger legitimate fears, as a heavy,
UN -labelled process imposed from the outside on the existing Internet
community, through which governments (and possibly intergovernmental
agencies) would want to regain control on a self-organizing system. And, to
say the truth, many aspects of the WSIS did nothing to alleviate those
fears. Hence his natural focus today on what allows the Internet to exist in
the first place (the preservation of its fundamental enabling technical
principles) and a persistent note of caution regarding the importance of
individuals as opposed to organizations that too often tend to capture
representation. In that perspective, broadening the definition of Internet
governance is seen as an important and still untested evolution; caution
should be exercised while shaping those new "multi-stakeholder" processes to
make sure that they do not affect negatively the spirit of the Internet.

Jeremy, on the other hand, is what we could call a "WSIS native". Even
almost an Internet Governance Forum native, who got involved in this field
at a much later stage through the angle of the policy-making dimension. To
him and many people who will join this process from now on (here again,
Jeremy is clearly invited to correct any thought I attribute to him), the
definition of Internet Governance included in the Tunis Agenda is almost a
self-evident truth, or at least a starting point to build upon and not the
result of a painful elaboration process that many actors still only
reluctantly endorse. His natural tendency is to connect this definition to a
broader regime theory and to focus on the organization of human activities
on the Internet, and to see the positive transformational potential this new
approach entails at a broader level.

In a nutshell, and once again to overly simplify positions, Karl may
underestimate the actual progress achieved in Tunis with the creation of the
IGF and how much it potentially could improve traditional intergovernmental
mechanisms if correctly implemented. Jeremy, on the contrary, may
overestimate the real level of agreement among actors (and particularly
governments) in favor of this new, multi-stakeholder approach. Excessive
caution and excessive enthusiasm are the two dangers that threaten the IGF
in the present stage : the IGF is far from perfect but it deserves to be
allowed to address broader issues than very limited technical ones (some of
which are by the way also very contentious); ont he contrary, trying to make
it move too fast can hurt it and produce backlash.

Karl's caution and Jeremy's enthusiasm regarding this experiment are not
contradictory; they complement each other as they are just representative of
the two forces that will guarantee the success of the IGF if we can combine
them dynamically.

3) Common grounds

Following the above, a few elements can be highlighted :
- both Karl and Jeremy are individuals, whose involvement in the IGF process
is not trough any organization; there is no better illustration of the
originality of the IGF; both, with others, are illustrating the capacity of
individuals to contribute and "represent viewpoints" rathr than people; Karl
should use this forum as much as possible to push his views forward : they
will receive much more echo than in the former, more rigid framework of the
WSIS;
- Karl's focus on "internet techno things" and Jeremy's focus on "policy"
correspond to the two dimensions of Internet Governance mentionned in
para 35 of Tunis : "We reaffirm that the management of the Internet
encompasses both technical and public policy issues" and in the definition
of Internet Governance in para 34 : "the evolution and use of the Internet";
complementarity again, not opposition;
- regimes can have very different levels of uniformity and enforceability,
such as : mere regular consultations among stakeholders, elaboration of
common non-binding guidelines and recommendations, but also, potentially,
full-fledged regimes including creation of ad hoc bodies able to take
binding decisions (caution : this does not mean it should be the role of the
IGF to elaborate such binding regimes); hence Karl's 'limited Internet
Governance" approach is simply one instance of the diversity of regimes
that could exist in the Internet Governance "toolbox" Jeremy seems to
envisage.

4) Clarifications

Beyond these common elements, there are still two elements that deserve more
exploration :

- Karl makes reference to "the governance body" as if there were (or should
be) one single Internet Governance Body. This probably will not be the case
and I do not think he means in the context of the broad definition of IG.
Several entities may be ultimately tasked with different issues, with
different corresponding regimes to implement. Just like at the national
level, different agencies handle antitrust, privacy, telecom regulation
etc... I believe we are clearly not talking about a future framework where
one entity is in charge of every aspect of Internet Governance. The
difficulty of ICANN to address issues such as .xxx (because of the content
regulation dimension) or whois policy (because of the privacy dimension) is
a good illustration of that. Even the IGF is probably just the dialog space
for all concerned stakeholders to exchange on how and where the elaboration
of a regime for a given issue should take place. Internet Governance should
probably work like the Internet and the Web do : in a distributed, networked
manner, uniting diverse governance mechanisms and frameworks through common
interoperability protocols.
- Karl is absolutely right in raising the issue of binding decisions and how
they should be made : this is an open question. But there is a distinction
to make between regimes that bind only those who participated in their
elaboration and implement them among themselves (regimes similar to agreed
standards) and regimes that potentially are applicable to third parties or
have impact on them even if they did not participate in their elaboration or
even opposed them. The analogy is the majority rule in national legislations
when a decision has to be taken and consensus is not achievable because of
opposing interests. This is what governments have the responsibility to do
at the national level and their designation process (elections, etc...) is
supposed to provide them with the legitimacy to take decisions applicable to
all citizens. At the international level, such legitimacy processes do not
exist yet in general. This is a key challenge.

5) Internet Governance and World Governance (with a big W and a big G :-)

The KJ exchange in its final paragraph points towards an important
prospective issue. Are we "entering a whole new ball game" and "engaging in
World Governance with a big 'W' and a big 'G'" if we move beyond technical
issues ?

The now well-known Tunis definition of Internet Governance is : "Internet
Governance is the development and application by governments, the private
sector and civil society, in their respective roles, of shared principles,
norms, rules, decision-making procedures, and programmes that shape the
evolution and use of the Internet."

Let's step back for a second and notice that :
 - "Principles, norms, rules, and decision-making procedures" is exactly the
description of a regime in traditional regime theory (the mention of
"programmes" is a mere addition in the digital age to the list of possible
components in a regime; it's basically a "law embedded in code" type of
approach - the mirror image of Lessig's "code is law")
- "the development and application by governments, the private sector and
civil society, in their respective roles" is the fundamental notion of
multi-stakeholderism (the modalities of which have of course to be invented)

Given the above, you now get a more compact definition of Internet
Governance that could read : *"Internet Governance is the multi-stakeholder
development and application of regimes shaping the evolution and use of the
Internet."* No change of substance, just a more compact formulation.

If you then replace Internet by an abstract domain Z, you get something like
: "the governance of [domain Z] is the multi-stakeholder elaboration and
application of regimes [related to domain Z]". Now, try replacing [domain Z]
by your favorite pet global issue and you might well have a generic
definition of governance for global issues.

This is why the success of the IGF experiment, in spite of its modest and
fragile present beginning, is of the highest importance for all
stakeholders, including governments. Internet Governance is a test case for
processes that are dearly needed to address the issues of an increasingly
interdependent world, because they are more and more difficult to handle in
the sole framework of intergovernmental negotiations.

__________________

I hope this (too) long post helps bridge a difference of viewpoints that
actually permeates through the whole Caucus and helps us move forward. It is
not intended to trigger a new debate and I hope I did not ruffle any
feathers here in getting a bit on the personal side. I'm looking forward to
the opportunity to discuss that face to face whenever the opportunity comes
(in an IGF workshop in Rio on the future Internet governance architecture /
framework ?).

Best to you all.

Bertrand

On 6/2/07, Jeremy Malcolm <Jeremy at malcolm.id.au> wrote:
>
> Karl Auerbach wrote:
> >> It is also about shaping opinions.  It can thus narrow areas of
> >> difference to be resolved through other mechanisms of governance (such
> >> as rules, norms, markets, or architecture).
> >
> > I'm having some trouble appreciating what you are saying; and I sense
> > that we may have a fundamentally different view of what this thing
> > "internet governance" is.
> ...snip...
> > To my mind, only those techo-internet matters that require, and I mean
> > really require, a unified, singular body to make binding decisions, are
> > matters that require a layer of internet governance.
>
> Then yes, we do have a fundamentally different view of Internet
> governance.  Recall that the WGIG defined Internet governance as "the
> development and application by Governments, the private sector and civil
> society, in their respective roles, of shared principles, norms, rules,
> decision-making procedures, and programmes that shape the evolution and
> use of the Internet."
>
> This is a much broader conception of Internet governance than that of a
> unified, singular body making binding decisions.  It is actually loosely
> derived from the accepted definition of a "regime" in international
> relations theory, which is broad enough to encompass all manner of
> public and private, hard and soft arrangements that shape the behaviour
> and expectations of actors in a given issue area.
>
> > In other words, to me, the term "internet governance" ought to be
> > reserved for those internet techno things that really and truly require
> > one choice that binds everyone.
>
> I see this as one of three spheres of Internet governance, that I refer
> to as "technical coordination", though there is no universally accepted
> term for it.  The other two spheres I refer to as "standards
> development" and "public policy governance".  Again, terminology varies,
> but I do think that your definition of "Internet governance" is nowadays
> unusually narrow.
>
> > I  sense that
> > you are considering governance in a broader way that isn't necessarily
> > coercive and admits of private choice that is contrary to the decision
> > of the governance body.
>
> Sure.
>
> > If we drop the qualifier "internet" from "internet governance" then, I
> > submit, we've entered a whole new ball game.  Once we start dealing with
> > matters that go beyond the technical necessities of the net, then we are
> > engaging in World Governance with a big 'W' and a big 'G'.  Much as I
> > think we want to improve the world, I'm not particularly optimistic
> > about the chances of success if we enter that arena.
>
> You mean, matters like openness, security, access and diversity?
>
> --
> Jeremy Malcolm LLB (Hons) B Com
> Internet and Open Source lawyer, IT consultant, actor
> host -t NAPTR 1.0.8.0.3.1.2.9.8.1.6.e164.org|awk -F! '{print $3}'
> ____________________________________________________________
>
>

-- 
____________________
Bertrand de La Chapelle

Tel : +33 (0)6 11 88 33 32

"Le plus beau métier des hommes, c'est d'unir les hommes" Antoine de Saint
Exupéry
("there is no better mission for humans than uniting humans")
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