[governance] Initial response of Just Net Coalition to the leaked NetMUndial draft

[parminder]

Please find as below, and enclosed...


/*Initial response of Just Net Coalition to the early draft of 
NetMundial outcome document*/

11th April, 2014


We commend the NetMundial process for its openness in inviting, 
receiving and reviewing submissions from the range of public interest 
actors as well as private interest ones. We thank the Executive 
Multistakeholder Committee (EMC) for developing the first draft of their 
report which we had the opportunity to access through wikileaks and on 
which we would like to comment in advance of the finalized report.

We think that the EMC has made a sincere effort to combine the various 
inputs into a coherent whole and the resulting draft provides some 
useful elements. We must observe however that the inputs cannot be 
viewed as being truly representative of the totality of Internet users, 
much less of the totality of the world’s population which should benefit 
from the Internet, because the there is a great dis-balance in terms of 
groups and constituencies that have contributed inputs.

We especially note positively the mention of the 'necessary and 
proportionate' principles for surveillance practices and the need for an 
international treaty to deal with jurisdictional issues, cyber crime and 
to restrain cyber weapons. We also commend the recommendations on open 
and inclusive IG processes at all level, particularly the inclusion of 
participation of all interested actors.

Having said this, we must express our dissatisfaction with the current 
document as having largely failed to meet the high expectations of a new 
start that the world community had placed on the NetMundial meeting. 
That high expectation was not necessarily to achieve full consensus: we 
know that many issues are contentious. The expectation was that there 
would be a full and open airing of the issues, with frank and robust 
discussions.

Reading between the lines, it is clear that the document effectively 
endorses the current Internet Governance status quo along with 
suggestions for minor changes. While being able to present substantially 
new proposals for change may have been difficult at such short notice, 
sadly we see the document as not even opening up new directions, and in 
fact perhaps closing down some that are currently being discussed in 
other places. In our view, the document avoids dealing with contentious 
issues. We believe that it is essential that the existence of such 
contentious issues be openly acknowledged, in particular since some of 
those issues have been under discussion for years and are of fundamental 
importance.

The document does not contain any forwarding looking proposals for 
addressing the absence of any means or mechanisms at the global level 
that could democratically address the urgent and important public policy 
issues that currently face the global community. Further the document 
fails even to appropriately frame the problem. In this sense it 
represents a retreat from the Tunis Agenda – which is surprising, since 
during the 10 years since the Tunis agenda was written the the global 
importance of public policy issues pertaining to the Internet has only 
exponentially increased in importance.

It is noteworthy that the Tunis agenda is referred to only once in the 
whole document, and in that instance as indicating quite incorrectly 
that that the Tunis Agenda has been implemented: “The implementation of 
the Tunis Agenda has demonstrated the value of the Multistakeholder 
model in Internet governance.” Such a statement, suggesting closure on 
Tunis Agenda, is really surprising especially when there is a UN working 
Group that is currently mandated to develop recommendations to 'fully 
implement Tunis Agenda' especially with regard to the key issue of 
addressing Internet-related public policy issues.

After saying that mechanisms may be needed to address 'emerging' public 
policy issues (using the unfortunate term 'orphan issues' which gives a 
kind of 'residual' status to one of the most significant set of global 
public policy issues) the draft veers towards recommending (1) Internet 
Governance Forum (IGF) as the principal site for addressing of these 
issue (although in a bit apologetic and round about language) and (2) 
improving information flows between existing fora dealing with 
Internet-related public policy issues.

While some believe that IGF needs to be strengthened as a global policy 
dialogue space, and that all kinds of information flows between 
concerned institutions enhanced, this recipe for 'institutional reform' 
basically just rubber stamps the status quo of global Internet 
governance. This approach would mean that there would continue to be no 
global policy mechanisms to respond to the range of issues that have and 
are emerging globally concerning the impact of the Internet in economic 
restructuring and in helping to ameliorate the extreme concentrations of 
economic, social, cultural and geo-political controls that are emerging 
on and through the global Internet. The current draft completely fails 
at its central task, which is to give direction for responding to the 
principal problem facing the world today: how to channel the extremely 
powerful forces of the Internet into the support of the public good. It 
is this that we and many others believe to be the central challenge and 
opportunity for the NetMundial meeting.

The second major issue with the current document is that while it refers 
repeatedly to “multistakeholderism” and “stakeholders” as providing the 
frameworks for Internet Governance nowhere does it mention democracy or 
how multistakeholderism might contribute to or enhance the fundamental 
elements of democracy on which so much of human rights Internet freedom 
and social justice are based. This is truly alarming given the stridency 
with which so many actors are attempting to ensure that those pursuing 
private interests and the corporate sector have an equal role with those 
legitimately representing the public interest in the determination of 
public policy. It must be remembered that the Tunis Agenda repeatedly 
speaks of 'democratic (processes)' when referring to global Internet 
governance. Omission of this primary political norm from the NetMndial 
text is therefore highly objectionable and completely unacceptable.

The document must therefore underline that

 1.

    while the formulation of technical standards and technical
    coordination activities may most effectively be undertaken through
    an “equal footing of all stakeholders”, there is no basis for
    extending such a formulation or such mechanisms beyond the technical
    into broader areas of public policy decision making

 2.

    whereas all stakeholders should be able to freely input into public
    policy making processes, and even have a right to know how their
    inputs were considered, the right to make the final decisions on
    public policies rests with legitimate public interest actors that
    hold political responsibilities arising from formal democratic
    processes (this was also the process followed for the famous 'Marco
    Civil' legislation, and there can and should be no other kind of
    process for legitimate public policy making) .

While the draft document mentions the 'respective roles and 
responsibilities' of stakeholders in two places, these references are 
mitigated through questionable language in many other places in the 
document. The document should therefore clearly declare that MSism 
outside of the technical sphere is only operative within and as a 
contributor to the more fundamental democratic framework, and as well 
the term democratic should in all places be used in conjunction with the 
multistakeholder terminology. As the document calls for further 
discussions on 'respective roles and responsibilities' it should also be 
mentioned that such a discussion should take place within a larger 
discussion and debate on the relationship between democracy and MSism.

Specifically, one new item should be added to the Human Rights catalog 
under II on page 3: “Democracy: everyone shall have the right and 
opportunity to take part in the conduct of public affairs and public 
policy decisions, directly or through freely chosen representatives.”

A third issue with the current draft is the almost total neglect of 
global Internet-related public policy issues of an economic, social and 
cultural nature. While development and cultural diversity is mentioned 
in the context of “Internet principles”, there is nothing concerning key 
global public policy issues of this nature on the operations part, which 
though, admirably, does talk about global agreements on surveillance and 
cyber peace. As the Internet increasingly determines the global 
distribution of economic, social and cultural resources, we need global 
mechanisms to deal with the emerging distortions in such distribution. 
It was hoped that with a developing country taking the lead for the 
first time in steering a global IG discussion, such issues would come to 
the fore, not only in terms of statements of concerns, but also in terms 
of actual proposals for addressing them. The draft document needs 
significant improvement in this regard. (Also, a full mention of the 
term 'net neutrality' is needed and not just a reference to 'neutrality' 
which can be interpreted in different ways.)

Recognition of the Internet as a public good and a global commons must 
be stated as a primary principle underlying various Internet related 
public policies.

Further, even on issues such as democratization of technical 
coordination functions and their oversight, the document does not go 
beyond what has recently been declared by the US government and as is 
being pursued by ICANN. There is a need to discuss – without any 
preconditions – what kind of structure is most appropriate for managing 
the DNS and other critical Internet resources. We must for instance 
affirm the need for freeing such technical coordination functions from 
the jurisdiction of any one country, and the simultaneous need for 
appropriate oversight of these functions by the global community. 
**Specifically, the following should be added at the end of the second 
paragraph of 4 of III, on page 9, add: “The operational aspects must not 
be subject to the law of any one country, that is, they must benefit 
from immunity of jurisdiction.”

Given the limited time to evaluate and study this document, we are of 
the view that it should not be endorsed or approved at the meeting, it 
should be noted. It will then provide a useful input for further 
discussions.

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