[governance] Thoughts for Rio - pdf

[Jeremy Malcolm]

Adam Peake wrote:
> The proposal right on a number of important issues (it mirrors much of 
> what was said in the caucus proposal in February), but is deeply flawed 
> in suggesting that a bureau is in anyway an appropriate solution.  All a 
> bureau would do in this UN context would reassert control by governments.

But inevitably, governments already have control.

What is our ultimate objective here, as civil society and/or Internet 
technical people?  It is to have a say in public policy development. 
When decisions are being made about (hard and soft) legal mechanisms for 
governing Internet-related public policy issues such as content 
regulation, spam, cybercrime, multilingualism, access to knowledge, etc, 
we want our voices to be heard in more than a token way.

What we do not expect is that our contributions will have any binding 
authority; the Tunis Agenda makes that clear if it wasn't already. 
About as much as we can hope for is that if our involvement contributes 
to the IGF becoming broadly accepted as a legitimate transnational 
Internet governance institution, then its recommendations will come to 
have a normative force that may, in some issue areas, be sufficient to 
guide conduct.

At the end of the day though, even if the IGF made a recommendation that 
was truly the product of considered multi-stakeholder consensus 
(assuming it had the capacity to do so, which it currently doesn't), 
governments would still have the capacity to legislate inconsistently 
with it at a national or international level.  And WSIS provides no 
evidence that they wish to give this power up, at least until the Treaty 
of Westphalia is repealed, to use John Mathiason's metaphor.

So, I think we have to take the fact that government already have 
control over this process as a given.  To the extent that the 
multi-stakeholder trimmings obscure this and raise the illusion that 
governments have surrendered any of their power, they have become a tool 
of governmental hegemony (the window dressing you speak of).  Rather, it 
could be argued that the structure of the IGF should overtly acknowledge 
the sovereign power of governments, better to allow for other 
stakeholder groups to be protected against its abuse.

The idea of a four-fold bureau structure as suggested in the Eurolinc 
proposal would be one method of doing this.  I see the formation of a 
governmental bureau within this structure as of little significance 
given the control that governments already wield, but the formation of 
three counterbalancing bureaux as much more significant because it 
institutionalises the power of the other stakeholder groups, in a manner 
that a single mixed bureau of delegates acting in personal capacity does 
not.

Where the Eurolinc proposal diverges from my previous thinking on this 
issue is that it would not detract from the need for all stakeholder 
groups to reach consensus with each other.  Since the IGF is inherently 
a consensual body, this is a given.  Rather, the purpose of the bureau 
being subdivided in four would be so that:

(a) the equality of the stakeholder groups is institutionalised: whilst
     governments could block a proposal of the other bureaux, reflecting
     their effective power to veto any recommendation of the broader IGF,
     so too the civil society or private sector bureaux could formally
     block a recommendation of governments; something they cannot do at
     the moment (since any such balancing of stakeholder interests within
     the Advisory Group takes place behind closed doors); and

(b) the different distinctive working methods of each stakeholder group
     can be accommodated; for governments the diplomatic hand-shaking
     over a glass of wine in Geneva (to borrow your phraseology),
     alongside the online rough consensus building of the Internet
     technical community and much of civil society.

At the end of the day, it would still be necessary for the combined 
bureau to be in agreement, but at present the clash of cultures between 
the diplomatic community and the Internet community (sorry Parminder) is 
hidden behind the walls of the Advisory Group's ivory tower, and it may 
be that the only way in which for civil society to effectively assert 
its legitimate claim to participate in policy-setting as an equal with 
governments is for this battle to be brought out into the open.  I am no 
agonist, but the establishment of four distinct bureaux would be one way 
of achieving this.

I realise this seems a radical departure, and that I've probably lost 
most people who previously agreed with what I've had to say, but there 
is theory and previous experience to support it, which I will be 
wheeling out if I have the opportunity to speak at Giganet this year.

-- 
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}'
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