[governance] CSTD Meeting on Enhanced Cooperation Note 1

[Marilia Maciel]

My intervention is below. I hope to be able to make some more comments
about the meeting soon.

Best wishes,
Marília

*CSTD Meeting on Enhanced Cooperation*

*May 18th, 2012*

* *

*Marília Maciel*

Center for Technology and Society

Getulio Vargas Foundation - Brazil



I did not personally take part in both phases of WSIS, Geneva and Tunis, so
I think it is more appropriate that I leave to the many of you who have the
important comments that need to be made about the words expressed in the
Tunis Agenda.



Instead, I would like to share some perceptions about the landscape that I
see today, when I look at the Internet governance regime from the window of
my center of research in the South of globe. I highlight my location on
purpose because the place where our personal windows are naturally have an
impact on the landscape that we see, on the way that we perceive reality,
and we need to acknowledge that in order to be able to bridge positions and
to engage in a dialogue in which we can understand one another:



When I look out of this window I realize that the Internet is not a no
man’s land. Layers of regulation have been accumulating: regulation by the
architecture, by norms, by economic forces. And the regime developed
successfully for many years. But now I see, with concern, three main
changes that took place recently on the IG regime that need to be
addressed, and probably a mechanism of enhanced cooperation would be useful
to tackle some of them



First of all, there is an accelerated process privatization of regulation.
The open public Internet as we knew it is getting narrower. The experience
of “the Internet” that many people have today takes place inside closed
platforms in a customized fashion. This certainly brings implications to
freedom of information and to cultural diversity. But it also brings
considerable implications to the governance of this regime.  The terms of
use of these platforms, developed and modified unilaterally, are juridical
instruments of transnational nature that discipline several aspects of the
lives of citizens worldwide with no opportunities for democratic discussion
and no real chance to “opt out”. Individuals are forced to accept this
private regulation without a chance to scrutinize it.



The second development that has taken place recently is the emergence of
regional and plurilateral arrangements, particularly on the North of the
globe, for the discussion and decision-making of issues related to IG.
These fora are producing common interpretations, principles of regulation,
soft law, etc. This is in itself a valuable exercise, but this exercise is
producing an asymmetric regime: while many developing countries are focused
on achieving access to the Internet, other countries are shaping the way
that privacy, e-commerce, intellectual property and online digital
enforcement, to name just a few, are being dealt with. These policies are
being formulated by only a fraction of the world population and they are
narrowing down policy options for developing countries in the future. A
platform for harmonization of these initiatives with others that will
eventually emerge in the South is the only way to avoid fragmentation of
regulation. And we should bear in mind that fragmentation would go against
many of the issues we have ben trying to foster, such as openness, freedoms
and the universality of rights



The third development that I see with concern is the recent politicization
of the topic of Internet Governance. Internet governance is an increasingly
important global issue and this is illustrated by large number high-level
events that took place recently about these theme. The problem is that
these events are taking place with the exclusion of non-governmental actors
or with very narrow channels for their participation, leading to an erosion
of multistakeholderism. Maybe this is still not happening on the base of
the regime, on the level of the IGF. But there is an erosion as we move
towards higher political levels. So we cannot be mislead by the illusion
that, by doing nothing, by making no changes, we are promoting
multistakeholderism. This erosion can only be curbed by formalized
decision-making procedures that take into account multistakeholder
participation

Given the three recent developments that I mentioned – privatization of
regulation, purilateral decision-making and politicization and current
erosion of multistakeholderism - I think that a change on the current
configuration of the regime is needed, but any such change needs to foster
transparency, accountability and multistakeholder participation. And this
is why I currently feel uncomfortable with the idea of placing enhanced
cooperation under an existing UN organization.



Although meaningful steps have been taken in the UN to open its processes
to non-governmental actors, some basic preconditions for meaningful
non-governmental involvement are still missing. As an example, more than 30
civil society and academic organizations have recently presented a
statement, asking to have access to relevant documents about the World
Conference on International Telecommunications including, the preparatory
materials, and called the attention to the lack of meaningful channels for
participation, to the secrecy of documents and to the inexistence of
channels for remote participation. In fact, I think that the same statement
could be sent to member states that, after all, are the ones with power to
change procedures in ITU. Several governments have argued that they support
multistakeholderism in IGF. If this is really a fundamental principal, I
think they would agree that discussions elsewhere related to the Internet
should count on multistakehodler involvement.



My final message would be that yes, we need a mechanism of enhanced
cooperation in which developed, developing countries and the other
stakeholders can work together in a shared process. But this mechanism also
needs to improve transparency, accountability, balance between North and
South, and should be based on multistakeholder participation. This process
could be related to the UN, but it should be a new kind of shared
decision-making process.



Of course, there are pieces missing from the conceptual puzzle of a
mechanism of EC: What should be the topics discussed? What should be the
type of the outcome of a mechanism of enhanced cooperation? Documents that
provide framework for action? Documents that tackle concrete situations?
Would it produce soft law (non-binding recommendations)? Hard law? Do we
need a new body? A new body in the UN structure?



There are many questions that need to be answered, but, most of all, maybe
the time has come for us to face the question of what are the respective
roles and responsibilities of each stakeholder group in this regime,
something that the WGIG began to do some years ago. Each one has a
different nature, and different justifications underlay the need for their
participation. The clarification of this point may be key to developing a
feasible shared decision making processes among stakeholders.



It is not a simple task. It is one that requires more time of discussion to
mature ideas. That is why the suggestion of creating a Working group on
enhanced cooperation seems the most appropriate way forward. A WG with
freedom to think out of the box and to create a new shared process among
actors and not simply to seek to ascribe itself to what already exists. As
professor Wolfgang Kleinwachter has mentioned on several occasions, we need
innovation and creativity in international politics. I would agree with
that, and would add that we especially need it today and for the years to
come in the Internet Governance regime.



Thank you.

On Sat, May 19, 2012 at 11:38 AM, parminder <parminder at itforchange.net>wrote:

> **
> My remarks at the opening panel are enclosed.... parminder
>
>  *
> CSTD meeting on enhanced cooperation on pubic policy issues pertaining to
> the Internet**,*May 18, Geneva
>
> *Parminder Jeet Singh,  IT for Change, India
>
> *
> First of all I must say how glad I am that we have finally sat down to
> discuss in the right earnest the very important WSIS mandate of 'enhanced
> cooperation' on public policies pertaining to the Internet. I am sure that
> today's meeting makes a beginning that would have a lasting impact on
> democraticing global Internet governance.
>
>  *The key questions about enhanced cooperation, and the elephant in the
> room*
> We all know that 'enhanced cooperation' is a very complex and a much
> contested area. Before we begin to sort out how to operationalize 'enhanced
> cooperation', we need to discuss what is meant by this term, and also why
> has progress on this mandate been so difficult. In this regard, there are
> two important basic questions, and what I call as one very large elephant
> in the room. These two important questions are; Are there enough important
> and urgent global public policy issues pertaining to the Internet and, if
> there indeed are, it brings up the second question, what institutional
> system would best address them and how. And the the elephant in the room
> that I mentioned is multistakeholderism, an issue tied to what, who and
> how of EC. Let me briefly engage with these key issues that frame a
> purposive and worthwhile discussion on EC.
>
> Talking to people nowadays, one hardly finds anyone, at least anyone
> informed well-enough, who is not quick to admit that Internet is big, and
> it is global; and that, therefore, public policy issues around it are big
> and global too. Pick up the International Strategy for Cyberspace of the
> US, browse through OECD's pronouncements in this area or look at the CoE
> experts' report 'cross border Internet' or, for that matter, any other
> well- researched document about global Internet governance. They leave us
> in no doubt about the existence of important global public issues
> pertaining to the Internet. Therefore, I dont think we should waste too
> much time on this question – there are indeed very critical global Internet
> related policy issues, and they keep getting more critical and complex by
> the day. Global public interest demands that these global public policy be
> addressed in an appropriate and timely manner. With the Internet in its
> formative stages, and its basic architecture getting set, which in turn
> determining the structure of a new social order, we do not have the luxury
> of dithering and wasting valuable time.
>
> Next, we come to the question, who should address these critical global
> policy issues and how. And now the problem begins! Lets first map out where
> power resides or rather is concentrated in the Internet system today, and
> who at present takes critical decisions about the global Internet. Any such
> power mapping will reveal that the greatest power resides in the US, both
> with its government and its monopoly Internet companies, and increasingly,
> in their close mutual relationship. I would not be able to go into the
> detail in this matter here. Then there is the next concentric circle which
> includes a few most powerful countries; operating through OECD's, and also
> CoE's, Internet policy making mechanisms, which have a very active
> calender of activities and future plans. Such is the global nature of the
> Internet that whether it is the unilateral law or executive power of the
> US, private decisions of global monopoly Internet companies, or policy
> principles developed by the OECD, they tend to quickly spread and entrench
> across the Internet's architecture to take up global reach and application.
> The most telling observation of Lawrence Lessig is important to recall
> here. With the Internet, architecture is policy. If we do not have the
> right public policies, the architecture of the Internet itself becomes the
> policy. And thus we, I mean the rest of the world not involved with
> Internet governance decisions, get politically determined by the outside.
>
> Undoubtedly, governments exercise immense power over the Internet within
> their national boundaries, and there are very important issues about how
> this power is exercised at present. However, today our concern here is
> mainly the power over the global Internet and the issue of its
> democratisation. Also, I remain of the firm belief that global
> democratization of Internet governance will always have a positive role in
> its democratisation within national borders.
>
> Notwithstanding the claims by the US of a 'historic role' vis a vis the
> Internet, or citing of the privilege by the OECD of being the major global
> economic bloc, it should not be difficult to argue, because we all have
> this basic democratic urge and spirit - that every country should be
> present at the global policy table on an equal footing. And, one can see
> such a thing happen only in the UN or UN like body. Perhaps since this
> 'all countries should be present' justification of changing the status quo
> is difficult to argue against, almost all arguments against change are
> centred on the issue multistakeholderism – what I had identified as the
> elephant in the room, that we must confront, well, frontally.
>
>  *What does 'democratic and multistakeholder' mean in operational terms*
> One admits that institutionalizing representativity is never easy – and
> remains the central concern of democratic thought and practice. Governments
> purport to represent people and public interest, but there are indeed
> significant gaps in the chains of representativity from the people to
> governments, and further to the global governance spaces. In some cases
> such gaps are more acute than in others, and this 'governance problem' has
> to be dealt in an appropriate, evolving and contextual manner. However we
> cant knock off democracy just because we dont have it well enough yet.
>
> I say this with regard to, I understand, there being proposals on the
> table that want all stakeholders to be treated on an equal footing in any
> enhanced cooperation mechanism, whereby, apparently, that they should have
> the same or similar roles. I find this proposition very problematic. While
> one will like to know more details of how exactly is such an 'equal
> footing' proposition meant to work in practice, prima facie it seems to
> throw up very problematic issues vis a vis some basic principles of
> democracy. For instance, is it desired by such proposals, to put it
> somewhat bluntly, that a representative of Google or Microsoft should be
> voting on policy making at the same level as a government representative?
> If it is so intended, we are indeed going past the ideals and principles of
> democracy that has been the single most powerful political ideology and
> force of the last few centuries, and we must seriously debate this intended
> shift. In the alluring haze of multistakeholderism, we must not forget that
> big businesses expressly represent private interests, and mostly of those
> who already have much greater economic and social power.
>
> Similarly, the role of civil society is different from both the
> governments and business. Participation of civil society deepens democracy.
> It adds greater range, diversity and depth to articulation of public
> interest. Unlike business, civil society essentially represents public
> interest - in its differentiated shades and even internal tensions. Yet,
> such is the way in which civil society's legitimacy and role is structured,
> civil society actors will not like to claim an equal role to government
> representatives in actual decision-making processes.
>
> Like business brings valuable expertise about society's production systems
> to the table, the technical community brings expertise on technologies. In
> addition, many of the technical community are adherent upholders of some
> public interest values and principles, in which regard they are just a
> specialized section of the civil society. But the technical community must
> understand that the needs and demands of decisions making for larger public
> policy issues can be significant;y different from those for making
> technical decisions.
>
> Here, I have only briefly touched upon the different roles of different
> stakeholders. What I mean to underline in the urgent need to address this
> issue openly and earnestly, by all sides. Tunis agenda asked for any
> mechanism of enhanced cooperation to be innovative. Yes, we do have this
> opportunity here to improve global governance system so that they better
> serve global public interest. Internet has transformed so many social
> arenas, and it must have its impact on global governance systems as well.
> But let us seek these changes while staying within the long cherished norms
> and principles of democracy and public interest, and not, in our enthusiasm
> for change, breach them.
>
> If we can agree on the principles that govern such a nuanced understanding
> of a differential role - and I stress this phrase *' differential role'*- of different stakeholders, we would have crossed perhaps the most
> significant block that prevents progress on this issue of enhanced
> cooperation, which is of immense and epochal significance to global public
> interest, and to the future of our social systems, as an information
> society matures. In this regard, while we need not remain too closely stuck
> to the Tunis Agenda definition of the respective roles of stakeholders, we
> also must not breach the boundaries of democratic ideology and practice,
> and the distinction between public and private interest.
>
>  *Steps to take towards agreeing to an enhanced cooperation mechanism*
> In my view, we should approach the enhanced cooperation conundrum through
> the following steps. First we agree on the need and justification for a new
> mechanism for enhanced cooperation, which I think should not be difficult
> since everyone seems to accept that there are indeed critical global
> Internet related public policy issues. Next, we need to figure out what
> functions a new mechanism must perform to meet this important and urgent
> need. Thirdly, we come to the structure of the new mechanism, where it
> should not be difficult to accept that all countries must be represented
> equally. However, the role of different stakeholders, as I discussed, would
> be the key question to agree upon. If we have a focused, open and
> principled, discussion on this issue, I am sure we can overcome this key
> 'problem area'. At least, it is useful to know that this is the key
> 'problem area' with regard to moving the dialogue and process of enhanced
> cooperation forward.
>
> Once we have the justification, functions and the overall structure of a
> new mechanism on EC, it will be that much easier to find the appropriate
> location of such a mechanism. EC discussions seem too quickly to veer
> towards this sticky point, of whether such a mechanism should be inside the
> UN, ITU, or somewhere else altogether. Agreeing to keep such a discussion
> and decision for the last may be a good way to move out of the logjam in
> which the enhanced cooperation issue is caught today. This way we do not
> get too early into institutional politics that can cloud discussion about
> real basic issues which are more important to first address and sort out.
>
> To conclude, I must say that many of us in the civil society have received
> India's proposal for a UN Committee on Internet-Related Polices with much
> interest. It follows the Tunis mandate and principles for an appropriate
> body for enhanced cooperation, and has proposed a promising structuring for
> the role of different stakeholders, especially if seen in conjunction with
> India's 2010 proposal for strengthening the IGF. Of course, the proposal
> can indeed do with many improvements. We think that India's proposal is a
> good basis to start a dialogue on how to operationalize enhanced
> cooperation. In this regard, setting up a CSTD working group on enhanced
> cooperation should be a good first step in this direction.
>
>
>
>
>
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-- 
Centro de Tecnologia e Sociedade
FGV Direito Rio

Center for Technology and Society
Getulio Vargas Foundation
Rio de Janeiro - Brazil
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