[governance] Managing the Internet in the Public Interest

[Seth Johnson]

On Fri, Feb 27, 2015 at 7:40 AM, Anriette Esterhuysen <anriette at apc.org> wrote:
> Dear Parminder
>
> Just a quick response (still too long, sorry) due to lack of time.
>
> On 27/02/2015 12:14, parminder wrote:
>>
>> Dear Anriette
>>
>> Sorry, I had failed to see 'public good' part in APC's submission to NM,
>> and do fully remember our earlier collaborations/ discussions on this
>> subject, not only in the instance you quote but also when Pablo wrote
>> that paper on Internet as a public good. We may however need to flesh
>> out the governance mechanisms implication of such a thinking, in which
>> regard I dont see much being done in the civil society space. (I will
>> come later to your reference to 'public good nature of the Internet' and
>> the Aarhus Convention.) The recent FCC decisions both on regulating the
>> Internet as a kind of public utility (the Net Neutrality decision) and
>> that to prempt states from making laws prohibiting local governments
>> from owning broadband networks takes us in the direction of what in my
>> view are the governance implications of an "internet as a public good'
>> kind of thinking.
>
> Agree.
>
>>
>> First we must just get past the endless wranglings of economists about
>> their idea of 'public good' as being non-rivalrous and non-exclude-able,
>> and having externalities and so on, whereby it becomes difficult for
>> private actors to develop business models around them, which fact
>> creates market failures. Internet and its services are often or even
>> mostly rivalrous and exclude-able. Digital technologies have in fact
>> even rendered such goods excludable which were earlier considered
>> non-excludable, for instance broadcast signals. And lets not even talk
>> about externalities - for instance, I dont think good health services is
>> a public good because of issues of externalities etc - that is mostly
>> humbug, whereby perhaps it may be considered that treating infectious
>> diseases (that have externalities) is a public responsibility but not so
>> much non-infectious ones. Isnt it ridiculous1 As for business models,
>> never in the history have companies become so rich so fast as global
>> Internet companies. So the economic concept of public goods is not
>> working here, and therefore lets get over it.
>
> I think it actually does work in many senses. But I agree we should not
> let technical objections stop us, I just think it is worth having strong
> conceptual arguments that can be used to address them.


It's best not to take a stance of disavowing economic wrangling.  Most
of the time it's just about what premises people are bringing in, that
are baked into their reasoning from the outset.  It's like anything
else: just find the premises, present them and address them.


Seth


> I put this in a footnote of the chapter I wrote on the post-NETmundial
> book (Beyond NETmundial) that Bill Drake compiled and edited for Annenberg:
>
> "While the internet does not meet conventional criteria for being a
> global public good, this does not prevent public policy and regulation
> from approaching the internet as an entity that has many of the
> qualities of a public good. It is worth noting that it is mostly the
> lack of effective public policy and regulation that prevents the
> internet from conforming to traditional definitions of a public good,
> such as being ubiquitous and universally available."
>
> Book available here:
> http://www.global.asc.upenn.edu/publications/beyond-netmundial-the-roadmap-for-institutional-improvements-to-the-global-internet-governance-ecosystem/
>
> If you have time I would appreciate you reading my chapter as I make
> some effort there to outline what APC's critique of multistakeholder
> mechanisms are, but also why we believe that internet governance does
> need this approach.
>
>>
>> I would take 'Internet as public good' to simply mean that it is
>> socially and politically determined as too important a service to be
>> left to market forces alone, and public authorities must ensure that
>> appropriate 'quality' and quantity of Internet and Internet services are
>> made available to all, in some kind of equitable manner. This can be
>> done either by public authorities directly providing these services, or
>> ensuring through regulation that they get appropriately provided, even
>> if actual providers are private players. Either we take this
>> socio-political meaning of public good, or just dump this term in
>> relation to Internet and its governance. So, I take it that when you and
>> APC remain enthusiastic about Internet as a public good' idea, we are
>> talking about this latter socio-political meaning of the term.
>
> I am not sure I would limit it to a 'social-political- meaning. I think
> that precisely because the internet is platform for business, economic
> development, social interaction, political exchange, etc. etc. that it
> should be understood us and governed as a public good/common resource.
>
> But yes, I essentially agree and have never argued that it should be
> left to market forces alone. Not many people in CS have - to my
> knowledge - advocated for a completely unregulated internet.
>
> Just to take one example - protecting human rights on the internet. That
> requires regulation and the efforts of the many CS organisations working
> in this area has been to achieve this.
>
>> Now, if we agree on the 'Internet as a public good' in this sense, the
>> next issue is to explore the implications of it for governance
>> mechanisms for the Internet (without such exploration and following
>> through with it, Internet as public good' remains a mere slogan, of
>> little real use).  To me, this takes us directly to the issue of
>> regulation, and the default or backstopper responsibility of public
>> authorities on matters Internet. But here the equal footing
>> multistakeholder (MS) model where private sector seeks equal role with
>> governments in public policy making becomes a key problem - and the
>> equation simply does not square.
>
> I have never personally advocated for a generalised equal footing
> approach. Roles and responsibilities of stakeholders and of governments
> with or vs. other stakeholders will vary depending on the decision that
> is being made. There is good text on this in the NETmundial statement.
>
> In practice that is what an effective public policy framework should
> facilitate. I also don't get that having multistakeholder approaches to
> internet governance are mutually exclusive with public authorities
> having distinct roles on regulating certain aspects of corporate
> behaviour. What I would caution against is having internet governance in
> its entirely, and all aspects of the multiplicity of
> processes/behaviours and uses of the internet under the direct authority
> of governments.
>
> It really depends on the issues under discussion/being decided.
>
>
> The recent FCC decision on NN is a good
>> case in point, It was not a multistakholder decision, it was a decision
>> based on an intense public consultation and a committed political stand
>> of the Democratic Party, I think, chiefly of the incumbent US President
>> (God bless his soul!).  Thinking about it, the earlier decision of FCC,
>> 2-3 years back, which both exempted wireless from NN rules and did the
>> limp thing of keeping Internet in title 1 was more a 'multistakeholder'
>> thing. At that time, the FCC actually more or less rubber stamped an
>> agreement reached between Verizon and Google - as the two key
>> stakeholders seen on two sides of the NN debate. It was a very bad set
>> of NN rules. While the NetMundial document, in the MSist manner, will
>> want us to make public policies based on consensus among stakeholders,
>> the current FCC decision is not based on consensus -  - even the FCC
>> commissioners are divided 3-2, while of course the telcos and the
>> republicans are dead against it.
>
> Yes, a good example of where public interest regulation is needed and
> can set needed bottom lines. I do fear however that this decision could
> give unfair advantage to certain sectors of the ICT industry, but that
> is another matter, and one that regulators should be alert to.
>>
>> When one sheds democratic public systems thinking in favour of an
>> equal-footing MS one, one has shed all ideals like public goods with
>> that. Public goods thinking is based on political equality and basic
>> social and economic rights of all people - and democratic public policy
>> development is basic to it.
>
> I guess here is where we think differently. In my view current
> democratic systems leave a lot to be desired, and I don't think they are
> doing that well in achieving political equality - neither between
> countries nor within countries.
>
> For me (and I think I can speak her for others in APC too) the entire
> effort in exploring new approaches to internet governance has been in
> response to the failures of existing global governance systems, and of
> governance at national level in most parts of the world.
>
> We are not abandoning existing democratic public systems thinking - we
> are trying to make them more democratic, more inclusive, and to find
> ways of ensuring accountability for the public interest that responds to
> current contexts.
>
> This will have to take many forms - from grassroots democracy to
> multistakeholder processes to more open and accountable government...
> and more.
>
> Now about the opening statement of the
>> NetMundial document, that we are talking about, it is as follows:
>>
>>    "NETmundial identified a set of common principles and important
>>    values that contribute for an inclusive, multistakeholder,
>>    effective, legitimate, and evolving Internet governance framework
>>    and recognized that the Internet is a global resource which should
>>    be managed in the public interest."
>>
>>
>> You want us to be happy about the mention of 'Internet.. should be
>> managed in public interest', I rue that 'democratic' is so sorely
>> missing here, in the description of the evolving Internet governance
>> framework (lets not blame the contributions, some of us made
>> contributions almost exclusively stressing the 'democratic' part).
>
> Democratic does does appear in the document as a qualifier for
> multistakeholder - but I understand if you wanted more. "Internet
> governance should be built on democratic, multistakeholder processes,
> ensuring the meaningful and accountable participation of all
> stakeholders, including governments, the private sector, civil society,
> the technical community, the academic community and users."
>
> Why I am 'happy' about the notion of public interest being there is
> because this is a document to which business, governments and CS and
> tech community agreed to. If it was in a document signed onto by
> government representatives I would not be surprised to see it there, but
> I would wonder to what extent they really care about it and how we can
> hold them accountable for it.
>
> The strengths and limitations of having this term in 'multistakeholder'
> set of principles are different - but it still creates common ground.
>
> To
>> that extent the weak mention of 'to be managed in public interest' is
>> rather a lame effort at still garnering some legitimacy after the
>> glaring, and I would say deliberate, omission of the term 'democratic'
>> in this opening framing of IG principles section (in view of numerous
>> submissions stressing the 'democratic' point, see for instance here
>> <http://content.netmundial.br/contribution/is-certain-kind-of-multistakeholderism-a-post-democratic-ideology-need-to-save-netmundial-outcome-documents-from-crossing-some-sacred-democratic-lines/300>
>> and here
>> <http://justnetcoalition.org/it-change-jnc-intervention-netmundial>) . I
>> find it extremely problematic, and find no cause for celebration about
>> this opening text of the NM document.
>>
>> In fact the original document prepared by the NM committee that was
>> circulated for comments contained not a single reference to the term
>> 'democratic'. In contrast, the word stakeholder is mentioned 21 times
>> and multistakeholder 13 times. Perhaps you as the co-chair of the
>> drafting group can help us understand how and why did the contributions
>> stressing terms like 'democratic' were never able to find their way into
>> the text.
>
> As I was not at all involved in the NETmundial process and the drafing
> of earlier version of the statement until the actual event I cannot say
> much. I can share that there was general dissatisfaction with the
> earlier drafts, and that as a result we (the final drafting team) tried
> very hard to address those concerns.
>
> I know one has to make compromises in drafting such texts, but
>> this does not look like a compromise, it is a complete rout.  In the
>> final document, however, 'democratic' comes twice, first in the opening
>> sentence of the part on IG process principles as  'democratic
>> multistakeholder processes' and I have a feeling that the Indian gov rep
>> somehow got it inserted there in the last discussions.
>
> Actually, it was not placed there by a government rep.
>
> The second
>> mention is when describing stakeholder selection processes within
>> stakeholder communities, and therefore is mentioned in a different
>> sense. In comparison the final document has 27 mentions of 'stakeholder'
>> and 16 of 'multistakeholder'. Do you see something here? If indeed we
>> are into analysing the good and bad of the NM text.
>
> I am not really concerned with the good and bad of the text. APC wrote a
> statement on that, and I elaborate a bit more on the value of the event
> in the abovementioned chapter.
>
> I am concerned with how to move on. As you say there texts are always
> compromises - e.g. we are currently working on a piece of national
> legislation here in SA - it is always a case of submitting input,
> winning some and losing some, and submitting again, etc.. It is not a
> multistakeholder process, but I can assure you that business is
> influencing it. I guess that here is also where we disagree. You believe
> that government led processes are by definition better able to counter
> special interests. I don't. My experience is that they manage to
> influence these processes very effectively and the interests that
> usually lose out are civil society and community interests.
>
>>
>> So lets make no mistake what the NetMundial document is about, and we
>> need to read its opening line, which we have been discussing, within
>> that context. No, it does not advances public interest, and certainly
>> not a public goods conception of the Internet. In fact it takes us to
>> privatising Internet governance itself, where governance itself does not
>> remain a public good, but becomes a club good with limited and exclusive
>> participation of some elevated people and groups close to the power
>> structures, who are euphemistically called as stakeholders. NetMundial
>> document serves the original design of the US government to thrust the
>> ICANN model of private governance on the larger Internet governance
>> space, and it achieves it with remarkable success. The purpose of the
>> Net Mundial document is correspondingly to supersede WSIS documents
>> (although the presence of some progressive governments like Brazil and
>> India shows some mark on the document, even as the general
>> progressiveness of Brazilian government was largely drowned under
>> CGI.Br's love for ICANN and its governance model.)
>>
>
> Civil society left a huge mark on the document. India did not, at least
> not in the process I was involved in, intervene. I think possibly
> because they had already decided not to support the statement. Brazil
> definitely intervened.. and probably other governments were talking to
> Brazil and using them to channel concerns.
>
>> It is therefore little surprise that Net Mundial has become the Bible of
>> status quo ists, and WSIS documents including Tunis agenda by that
>> expedient consigned to history. Little surprise also that the Net
>> Mundial document and the connected exercise takes us towards the elitist
>> Net Mundial Initiative (NMI) as the new global IG framework. No further
>> surprise that the chief cast of the NMI, Fadi Chehadi, openly says that
>> if we do not set up an NMI kind of governance structure, the WSIS 10
>> processes may throw other kinds of governance structures at us. All of
>> it is of one piece, and the connections cannot be missed by anyone
>> willing to give it all but one sustained thought. And it all started
>> with that famous visit of Fadi - on US's behest - to meet the Brazilian
>> President. How quickly can history move under the command of the powerful,
>
>
> I don't disagree with all of this :) But I have less faith in what the
> Tunis Agenda definitions give us.. or should I say, what it will give us
> as long as it is in the hands of the governments who are most adamant
> about strengthening governmental oversight over all aspects of the internet.
>
>> Apologies for the longish email, but these are my political outpourings
>> which I could not contain when I read you write that the term 'Internet
>> ....to be managed in public interest' of NM document's opening part is
>> an important baseline that we must defend. Yes, the Netmundial document
>> is an important baseline, but for something entirely different - for a
>> new neoliberal conception of global IG. It has nothing to do with real
>> public interest. As for 'Internet as a public good' we may just
>> completely forget about such idealistic things; the NM document is a
>> push in the direction of allowing a complete free run for global
>> Internet corporations to fully commercialize the Internet, with no fear
>> of public or regulatory 'interference'. They are now at the table, equal
>> to anyone else, to simply veto any such proposal. Where does the public
>> good remain?
>>
>
> Public good, and public interest will be defined differently by
> different actors. We will always have to fight for it. Governments are
> doing a very bad job at this.
>
> In the way that the CGI.br principles formed a basis for the Marco Civil
> I believe that NETmundial principles, even if they are not exactly what
> all of us wanted can form a basis for establishing principles for more
> democratic and inclusive and rights-centre internet policy making by
> governmental, intergovernmental, private and multistakeholder bodies.
>
> Also apologising for length of my response. I think we have the same
> goal in the end Parminder - but we have, at this time and in this space,
> different strategies and tactics. Rather than seeing the MS approach as
> a way of selling out completely to business, I see it as an approach
> that can make both business and government more accountable for
> protecting and promoting the public interest - and that can give civil
> society more voice. But nothing can be taken for granted. Quoting from
> the NETmundial chapter I did again:
>
> "The multistakeholder approach is not an end in itself, it is a means to
> achieve the end of inclusive democratic internet governance. This
> implies that these processes need to be more than just
> 'multistakeholder': they need to strive actively to be democratic, and
> consider stakeholders, and their roles and interests in a dynamic and
> flexible manner.
>
> Multistakeholderism is not a substitute for democracy. Mechanisms
> intended to strengthen the multistakeholder approach need to start from
> this premise, and explore the relationship between the two.
> They also need to consider the six factors identified above, that the
> internet is inherently 'multistakeholder' and a global public resource,
> that divides in power and influence continue to characterize internet
> development, use and governance, that internet users – and those who
> don't have access yet – matter, that internet policy is not just about
> the internet; and, global internet governance not just about global issues."
>
> Anriette
>
>> Regards
>> parminder
>>
>>
>> On Thursday 26 February 2015 11:03 PM, Anriette Esterhuysen wrote:
>>> Dear all
>>>
>>> As one of the co-chairs of the drafting group who drafted the NETmundial
>>> principles I know exactly how the "public interest" and "global
>>> reesource" text got there.
>>>
>>> Good that you submitted it Michael - I don't recall seeing your
>>> particular submission but it was actually in other submissions as well.
>>> There were many - beforehand and during the event itself. We also
>>> battled text choices out on site in the drafting group which had
>>> representatives of all stakeholder groups on it. The secretariat - and
>>> they deserve a lot of credit - tried their best to respect submissions.
>>>
>>> Those of us in drafting group made sure that the public interest text
>>> was in the opening of the statement. There are also other bits of good
>>> text which is there because of the efforts of civil society people
>>> present - and because there were good submissions from civil society -
>>> including from IGC.
>>>
>>> Parminder is correct that the text 'global resource' was compromise text.
>>>
>>> Some people, including APC, wanted global public good (it is in our
>>> NETmundial submission - I quote: "APC has participated actively in
>>> [snip] driven by the conviction that the internet is a global public
>>> good and a vital enabler of social justice, development, peace,
>>> environmental sustainability, gender equality and human rights."
>>> http://content.netmundial.br/contribution/association-for-progressive-communications-apc-contributions-to-the-netmundial-global-multistakeholder-meeting-on-the-future-of-internet-governance/274
>>>
>>>
>>> In that context though global public good was not text that anyone else
>>> fought for, and after some options we opted for global resource
>>> particularly as President Roussef and Neelie Kroes had used that that
>>> term.
>>>
>>> Also, there was a trade off as there often is in such drafting
>>> processes, and I felt that 'managed in the public interest' was
>>> significant.
>>>
>>> Yes, it is vague, but it is important. As a principle it means it has to
>>> be discussed and decisions and decision-makers have to demonstrate how
>>> they are serving the public good.
>>>
>>> As Norbert very importantly and correctly points out, one can absolutely
>>> not assume that all regulation and governance that is 'public' is in the
>>> public interest.
>>>
>>>
>>> APC has never stopped wanting the internet to be approached, understood
>>> and governed as a global public good. We still use this language - as we
>>> did last year in our NETmundial submission and in various other
>>> documents.
>>>
>>> What we have had to acknowledge is that for many people (including
>>> socialist economists) the concept of global public good does not apply
>>> to the internet for fairly technical reasons used by economists when
>>> defining public goods.
>>>
>>> Our current 2013-16 strategy has exploring how the internet can be
>>> understood as public good-like entity as a priority. You might remember
>>> that about 5 years ago we asked IT for Change to write an issue paper on
>>> the internet as a global public good but you were too busy at the time.
>>> We have definitely not abandoned this concept. But we want to find ways
>>> of approaching it and explaining it that make sense to lawyers
>>> economists, activists, governments and users.
>>>
>>> I personally believe very strongly that because the internet is a global
>>> public good its governance cannot just be left to governments - but that
>>> is a different discussion. That is why we explored the Aarhus Convention
>>> because we felt that mechanisms used for transparent public interest
>>> governance of natural resources can provide useful models for internet
>>> governance.
>>>
>>> There is good text in the WSIS documents and many of us have drawn on
>>> that good text. There is also some not so good text. This is true for
>>> the NETmundial statement as well.
>>>
>>> We should never retreat from good text. But we should also get some good
>>> principles and agreements adopted formally as principles for internet
>>> governance so that we can hold governments AND other actors accountable
>>> for applying them.
>>>
>>> Anriette
>>>
>>>
>>>
>>>
>>> On 26/02/2015 14:04, parminder wrote:
>>>> On Thursday 26 February 2015 03:02 PM, Anriette Esterhuysen wrote:
>>>>> Michael, many in CS have worked very hard for recognition that the
>>>>> internet should be governed in the public interest. For many years.
>>>>>
>>>>> Getting that text into the NETmundial statement took work, but we
>>>>> got it
>>>>> there and that is why I think it is short-sighted to dismiss that text.
>>>> Anriette, in my humble view this text about 'Internet being a global
>>>> resource that has to be managed in public interest' got in there because
>>>> people were haggling over terms like Internet as a pulbic good, or a
>>>> commons (which were indeed the politically meaningful terms) , which was
>>>> obviously resisted by the usual suspects, and moving the words like
>>>> resource and public around, the involved people reached this somewhat
>>>> meaningless phrase. I may be wrong, in which case I am open to be
>>>> corrected.
>>>>
>>>> In fact 'governing something in public interest' is a bit of oxymoron,
>>>> because once a subject is recognised for public governance, as Internet
>>>> was by WSIS, it is but obvious that it will be governed in public
>>>> interest (what else ?).
>>>>
>>>> Further, I am not aware of, as you say, the long struggles either of
>>>> general civil society or APC for a recognition that the Internet should
>>>> be governed in public interest - simply because it is kind of obvious .
>>>> Yes, APC was at one time very active to push the Internet as public good
>>>> agenda, although I have not heard of it in the last many years. We
>>>> should not confuse 'public good' and 'governance in public interest' ,
>>>> not that I am saying that you are confusing the two - just clarifying.
>>>>> It is a very important baseline from which we should never retreat and
>>>>> on which we can build.
>>>> For the above reason, I do not think of it at all as an important
>>>> baseline. Much much more progressive language is written in WSIS docs,
>>>> starting with Geneva Declaration of Principles. especially rights based
>>>> language, and issues like access to knowledge... These concrete
>>>> principles was much more meaningful rather than just professing a vague
>>>> 'public interest'.
>>>>
>>>> But of course just my view...
>>>>
>>>> parminder
>>>>
>>>>> http://netmundial.br/netmundial-multistakeholder-statement/
>>>>>
>>>>> "NETmundial identified a set of common principles and important values
>>>>> that contribute for an inclusive, multistakeholder, effective,
>>>>> legitimate, and evolving Internet governance framework and recognized
>>>>> that the Internet is a global resource which should be managed in the
>>>>> public interest."
>>>>>
>>>>> Anriette
>>>>>
>>>>>
>>>>>
>>>>> On 26/02/2015 04:12, Michael Gurstein wrote:
>>>>>> Contrary to the position of so much of CS in IG, Mr. Obama appears to
>>>>>> be set on developing a regulatory framework for the US that ensures
>>>>>> that the Internet will operate in the public interest.
>>>>>>
>>>>>>
>>>>>> <http://www.nytimes.com/2015/02/25/technology/path-clears-for-net-neutrality-ahead-of-fcc-vote.html>
>>>>>>
>>>>>> http://www.nytimes.com/2015/02/25/technology/path-clears-for-net-neutrality-ahead-of-fcc-vote.html
>>>>>>
>>>>>>
>>>>>>
>>>>>>   M
>>>>>>
>>>>>>
>>>>>>
>>>>>>
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>>>>>
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>
>
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