[AfrICANN-discuss] Internet principle hype: how softlaw is used to regulate the Internet

[Anne-Rachel Inné]

http://news.dot-nxt.com/2011/07/27/internet-principle-hype
Internet principle hype: how softlaw is used to regulate the Internet [full
article] by Wolfgang Kleinwachter <http://news.dot-nxt.com/user/23> | 25 Jul
2011 |

No government took note when Tim Berners-Lee at CERN in Geneva published a
short summary of his WorldWideWeb project on the
alt.hypertext-newsgroup<http://en.wikipedia.org/wiki/Newsgroup>on 6
August 1991. The world was busy with the end of the cold war and the
Internet was widely ignored by political leaders.

Twenty years later, more and more governments are struggling how to get the
consequences of Berners-Lee invention under control. The year 2011 could go
into the Internet history books as the year of "Governments for Internet
Principles".

The Internet has climbed up the ladder of political priorities and has now
even reached the G8The Internet has climbed up the ladder of political
priorities and has now even reached the G8. When the leaders of eight
powerful nations - Obama for the USA, Medvedev for Russia, Sarkozy for
France, Merkel for Germany, Cameron for the UK, Berlusconi for Italy, Harper
for Canada, Kan for Japan and Baroso for the EU - came together in the
French sea-resort Deauville at the end of May 2011, Internet Policy was a
top issue on their agenda.

Three out of 15 pages of the *Deauville Declaration* dealt with the
Internet. And as a 'highlight', the G8 leaders agreed "on a number of key
principles, including freedom, respect for privacy and intellectual
property, multi-stakeholder governance, cybersecurity and protection for
crime." The Declaration underlines that such an agreement was reached "for
the first time at leaders' level".

But it is not only the G8 which has discovered the Internet as an issue for
high politics in 2011.

The Council of Europe, the OECD, the OSCE and NATO have started similar
initiatives towards the elaboration and adoption of Internet principles. US
President Barack Obama proposed 10 principles in his strategy paper in May
2011; EU Commissioner Nelly Kroes offers seven principles when she proposed
an 'Internet Compact' end of July 2011. Brazil, India and South Africa - on
behalf of the Group of 77 - proposed the 65th UN General Assembly in
September 2010 to launch a "new intergovernmental Internet platform". And a
G20 meeting, which includes also China, is scheduled for November 2011 in
Cannes.

Why is such an Internet-Principle-Hype (IPH) emerging, and what will be the
outcome of this governmental and inter-governmental activism?

*1980s: The Netiquette*

The Internet was never a law-free zoneLet's go back to history. The Internet
was never a law-free zone. However it developed mainly in the shadow of
specific governmental regulation. In contrast to the invention of
telecommunication and broadcasting - which soon after its early adoption was
pushed into a regulatory framework of national telecommunication and
broadcasting laws - nobody introduced a national Internet law or an
international Internet Convention after the TCP/IP protocol opened the door
for the development of a net of networks, the Internet.

The self-regulatory mechanisms which were introduced by the Internet
community itself - a small group of geeks in the 1970s and 1980s - was seen
as sufficient enough to manage the emerging network. The RFC procedure,
introduced already in 1969, provided the needed rules to guarantee the
needed stability and flexibility and to get emerging problems under control.


One example was the 'Netiquette' which introduced a number of ethical norms
as basic guidelines for fair Internet behavior by individual users. The
netiquette was developed in the early 1980s when text-based e-mail,
Telnet<http://en.wikipedia.org/wiki/Telnet>,
Usenet <http://en.wikipedia.org/wiki/Usenet>,
Gopher<http://en.wikipedia.org/wiki/Gopher_%28protocol%29>,
Wais <http://en.wikipedia.org/wiki/Wide_area_information_server>, and
FTP<http://en.wikipedia.org/wiki/FTP> from educational and research
bodies dominated Internet traffic.

The WWW was certainly a watershed for the Internet. Within a couple of years
the number of Internet users exploded and reached 300 million in 1995. The
Internet pioneers realized quickly that they have to do something with their
internal rules.

In order to bring these new users into the Internet culture quickly, this
Guide offers a minimum set of behaviors which organizations and individuals
may take and adapt for their own useSally Hambridge from Intel published in
October 1995 a new RFC - the famous RFC 1855 - which summarizes and
re-describes the Guidelines for a 'Netiquette on the Internet'. "Today",
wrote Hambridge in 1995, "the community of Internet users includes people
who are new to the environment. These 'Newbies' are unfamiliar with the
culture and don't need to know about transport and protocols. In order to
bring these new users into the Internet culture quickly, this Guide offers a
minimum set of behaviors which organizations and individuals may take and
adapt for their own use."

RFC 1855 includes a number of good guidelines as the famous 'robustness
principle', better known as Postel's law, from RFC 761: "Be conservative in
what you send; be liberal in what you accept." But RFC 1855 also includes
rules like "don't send unsolicited mail" and "respect the copyright on
material that you reproduce".

when criminals, hate preachers, peadophiles, vandals and terrorists
populated the net at the end of the 1990s, the 'Netiquette' reached its
limitsThe problem with the Netiquette was that it did not have any
implementation mechanism. Responsible people respected the rules, but
irresponsible behavior remained unpunished. The worst thing which could
happen was that the rule-breaker was flamed and lost his/her reputation in
the community. But when criminals, hate preachers, peadophiles, vandals and
terrorists populated the net at the end of the 1990s, the 'Netiquette'
reached its limits.

*Private Sector vs. Governmental Leadership*

In so far it was understandable that some governments started already in the
mid 1990s to think about something like a governmental supported regulatory
framework for the Internet.

The EU Commissioner Martin Bangemann used an ITU Conference in Geneva in
September 1997 to propose a 'Declaration for the Information Society'. The
idea did not get the needed support.

The new emerging business players of the growing Internet economy were
afraid that such a governmental declaration will not promote but restrict
the further development of the Internet by introducing heavy regulation
which could eventually block the creative concept of 'innovation without
permission'. And the US government feared that a UN sponsored Declaration
could re-open the counter-productive political UNESCO debate around a 'New
World Information and Communication Order' (NWICO) in the 1980s.

As a result the new big Internet companies proactively established the
'Global Business Dialogue on eCommerce' (GBDe) where they proposed to
develop an industry led self-regulatory framework.  And the US government
launched the private 'Internet Corporation for Assigned Names and Numbers'
(ICANN), where governments have only an advisory role.

China argued that private sector leadership was probably good when the
Internet had one million users. But with one billion users, governmental
leadership would be neededNot everybody was happy with ICANN and the private
sector leadership principle. When the UN launched the World Summit of the
Information Society (WSIS) in 2002, China argued that private sector
leadership was probably good when the Internet had one million users. But
with one billion users, governmental leadership would be needed to get the
Internet under control.

Internet Governance suddenly was in the spotlight of a political power
struggle. It was US vs. China, ICANN vs. ITU, private sector leadership vs.
governmental leadership.

It needed three years of controversial negotiations and the intense work of
an UN Working Group on Internet Governance (WGIG), appointed by the former
UN Secretary General Kofi Annan, until a compromise was reached.

WGIG rejected the idea of 'single leadership' and proposed a
multi-stakeholder model, where all main stakeholders - governments, private
sector and civil society - should work together "in their respective roles"
by sharing "principles, norms, rules, decision-making procedures, and
programmes that shape the evolution and use of the Internet".

The WGIG recommendation made its way into the Tunis Agenda which was adopted
by the head of states of 150+ governments of the world at WSIS II in
November 2005.

The Tunis agenda did not introduce any specific regulation for the Internet
however it included, in rather vague language, a number of general
principles which could be interpreted as the starting point for a more
specific regulatory framework for the governance of the Internet, based on
the multi-stakeholder model.

The Internet Governance Forum (IGF), another outcome of WSIS, became the
place for a continuation of the debate. During the second IGF in Rio de
Janeiro (November 2007) a so called Dynamic Coalition on Internet Rights and
Principles was formed and produced within three years a reasonable document.


The IGF has no decision making capacity and the outcome of Dynamic
Coalitions is not more (but also not less) than food for thinking.

*Re-Thinking of Internet Policy Making*

the IGF triggered a re-thinking of the need to have something like a global
regulatory framework for the InternetAnd indeed, the IGF triggered a
re-thinking of the need to have something like a global regulatory framework
for the Internet. While a rough consensus emerged soon, that "something on
paper" is not such a bad idea, the gap was between groups who wanted to see
a legally binding convention and other groups who were in favor of a more
soft solution, a non-binding political declaration of general principles and
guidelines which would help to identify what is good and what is bad
behavior on the Internet.

In the United Nations, G77 countries argued that there is a 'missing link'
in the Internet Governance Eco-System and they proposed a new
intergovernmental mechanism, which could lead later to an Internet treaty.

In 2009, a Ministerial Conference of the Council of Europe established an
Expert group with the mandate to investigate the feasibility of a legal
instrument for cross-border Internet issues.

In 2010, the US government proposed to the OECD to start work on drafting
principles "for Internet policy making". And when France overtook the G8
presidency in 2011, President Sarkozy announced in January 2011, that the
Internet will be the first priority of his G8 presidency.

With more than two billion Internet users the Internet is not more a place
for geeks and freaks, it reflects the world in its totality with all its
deficienciesThis Internet-Principle-Hype does not come as a surprise. With
more than two billion Internet users the Internet is not more a place for
geeks and freaks, it reflects the world in its totality with all its
deficiencies.

In 2011, the Internet has landed in the center of world politics and
economy. "The world must collectively recognize the challenges posed by
malevolent actors' entry into cyberspace and update and strengthen our
national and international policy accordingly," argued US President Obama in
his 'International Strategy for Cyberspace' in May 2011. "Activities
undertaken in cyberspace have consequences for our lives in physical space,
and we must work towards building the rule of law, to prevent the risks of
logging on from outweighing its benefits."

And he added: "The future of an open, interoperable, secure and reliable
cyberspace depends on nations recognizing and safeguarding that which should
endure, while confronting those who would destabilize or undermine our
increasingly networked world."

What we can see here is an important policy shift from a controversial "no
law vs. binding law" constellation to a new soft law approachWhat we can see
here is an important policy shift from a controversial "no law vs. binding
law" constellation to a new soft law approach, for a new 'netiquette' which
is aimed not only at the Internet community but at all governments, business
and civil society.

Such a soft law approach could indeed deliver both a continuation of the
flexibility the Internet needs for its further development and a higher
degree of stability which is needed to get the trust of the next billion
Internet users and the next generation of Internet entrepreneurs.

A soft law approach also allows you to go beyond a traditional
inter-governmental mechanism for international law making and to enhance
partnerships and cooperation in designing political-regulatory frameworks
for the governance of the Internet.

After the Council of Europe (in June 2011) and the OECD (in July 2011) have
adopted documents and the US, the EU and the G8 have published statements,
it makes sense to have a more detailed analysis of the various activities.

A first brief comparison of all these new documents leads to four
interesting conclusions:

   1. All parties support the Multi-stakeholder model (MSM) as a basic
   governance principles
   2. All parties support the historically grown architectural principles of
   an open Internet (e2e)
   3. All parties identify three main areas where policy is needed: Human
   Rights, Security  and Economy
   4. But the various parties have different priorities if it comes to
   political issues

------------------------------

*Table 1: Comparison of Internet Governance Principles from the Council of
Europe Declaration (June 2011), the OECD Communique (Junly 2011), the US
International Strategy for Cyberspace (May 2011), the EU Compact Proposal
(July 2011) and the G8 Declaration (May 2011). Specific principles
identified in case by '[x]'.*.
 Subject Council of Europe OECD USA EU G8  Human Rights

[1] Human Rights, Democracy and rule of the Law
 [1] Global Free Flow of Information [1] Upholding Fundamental Freedoms

[4] Pro-Democracy
 [1] Freedom  [10] Cultural and Linguistic
Diversity [9]
Privacy Protection [3]
Valuing Privacy   [2]
Privacy Protection  Security [3] Responsibility of States [5] Reloable Data
Base for
Policy Making [4] Protection from Crime [1]
Civic Responsibility [5]
Cybersecurity  [6] Integrity of the Internet [6] Transparency, fair Process
and Accountability [5]
Right of Self-Defence    [6]
Protection from Crime    [13]
Cooperation for Internet Security Princieple 10: Cybersecurity Due
Dilligence    Governance [3]
Multi-stakeholder Governance [5]
Multi-stakeholder PDPs [9]
Multi-stakeholder Governance [3]
Multi-stakeholder Governance [4] Multi-stakeholder Governance  [4]
Empowerment of Users [6] Voluntary Developed Codes
of Conduct    [7]
Transparent Governance    [7] Decentralized Management [10] Individual
Empowerment and
Responsibility      [14]
Enforcement  Technology/
Architecture [5] Universality of the
Internet [2]
Open, distributed and interconnected
Internet [6]
Global Interoperability [2]
One Internet    [8]
Open Architecture    [7] Network Stability [5]
Open Architecture  [9]
Open Network [8]
Reliable Access    Economy   [3] Investment and Competition
in High Speed Broadband [2] Respect for Property [6]
User Confidence [3]
Protection of Intellectual Property  [4]
Cross Border Delivery Service        [11]
Creativity and Innovation  [12] Limits to Intermediary
Liability
------------------------------

In principle, principles are good. They give orientation and deliver
criteria to judge individual and collective behavior. It is much easier to
reach consensus around non-binding principles than on legally binding norms.


When the world wanted to do something after the end of World War Two to
promote human rights, Eleanor Roosevelt, who chaired the drafting committee
in the United Nations, preferred the soft law approach as a first step.

The Universal Declaration on Human Rights (1948) is a set of principles
which are legally non-binding.

It took another 18 years to finalize a legally binding human rights
convention (1966) and another 20 years until the overwhelming majority of UN
member states had ratified the treaty.

As experience has demonstrated, the political power of the principles of the
Human Rights Declaration can't be underestimated. But principles are not
enforceable.As experience has demonstrated, the political power of the
principles of the Human Rights Declaration can't be underestimated. But
principles are not enforceable. Like the netiquette the only things one can
do is naming and shaming.

*The new Triangle*

However even the soft law approach is full of landmines and different
governments, stakeholder and organizations have different ideas about
priorities if it comes to the non-technical fields of policy.

For the Council of Europe, host of the European Court on Human Rights and
the European Human Rights Convention, Human Rights and Freedoms of
individual Internet users have the highest priority.

For the OECD, it is innovation, economic growth and the protection of
intellectual property which is most important.

For the US government, as for NATO (which has not yet a formal document
adopted but also works on a draft for Internet Principles) cybersecurity is
the number one.

The problem is that in a case of conflict, where legitimate interests and
values have to be balanced against each other, different organizations are
coming to different solutionsThis prioritization does not mean that the
Council of Europe ignores security and economy or the OECD and the US
government ignores Human Rights. The problem is that in a case of conflict,
where legitimate interests and values have to be balanced against each
other, different organizations are coming to different solutions. While in
one organization the human rights dimension of a special case is seen as
more important than the security implications, another organization can come
to another conclusion and argue that cybersecurity also needs limitations
with regard to individual human rights.

In other words, what we will see in the future is not only a battle among
governments and among governmental and non-governmental stakeholders but
also a battle among security, economy and human rights activists within
governments, businesses and civil society.

The challenge of how to create a magic triangle which balances security,
economic and human rights aspects will become a key issue for Internet
policy development of the next ten years.

The negotiations around the OECD principles were a good, eye-opening
example. The OECD, an inter-governmental organization, has opened itself to
the multi-stakeholder model after its Ministerial Conference in Seoul in
2007. It has invited the private sector, the technical community and civil
society to form advisory committees which participate in OECD policy
development processes.

During the final phase of the OECD negotiations, the civil society advisory
body CSISAC disagreed with two principles. In the CSISAC eyes, the OECD
principles would give preferences to the business interests and ignore
individual human rights, in particular with regard to the principles on
intellectual property protection and the intermediary liability.

The OECD governments including the US government undertook a lot of efforts
to get CSISAC on board. But the conflict could not been bridged and CSISAC
decided not so support the final document.

The Council of Europe has not yet such an internal multi-stakeholder
mechanism but it organized a multi-stakeholder conference before drafting
the final version of its declaration in Strasbourg in April 2011.

During this conference it became clear that the non-governmental
stakeholders support a lot of the ideas in the draft declaration but they
rejected the idea just to sign a document which was adopted by governments
only. They want to be an equal partner in an open and transparent bottom up
policy development process.

The Council of Europe, which is very supportive to the multi-stakeholder
model, is now considering continuing the discussion and to enhance the
inter-governmental 'Declaration of Internet Governance Principles' into a
multi-stakeholder 'Framework of Commitments'(FoC).

*Moving Forward into Unchartered Territory*

while everybody seems to agree on multi-stakeholderism, there are
uncertainties and deep differences in what is understood by this vaguely
defined principleThose cases lead to another problem: while everybody seems
to agree on multi-stakeholderism, there are uncertainties and deep
differences in what is understood by this vaguely defined principle.

Some governments have realized that they have to go beyond their traditional
policy-making procedures, but other governments just pay lip service to a
nice slogan and continue business as usual.

This will not work. Going back to the WGIG definition of Internet Governance
the principle suggests that norms, principles, rules and even decision
making should be "shared" among stakeholders.

The multi-stakeholder model is not a master-slave relationship, where
governments dictate what finally has to be adopted: it is a dialogue, a new
partnership, where all stakeholders, including governments, participate on
an equal footing in their respective roles.

The tools of the 20th century diplomacy are not adequate anymoreThe tools of
the 20th century diplomacy are not adequate anymore. What is needed is a new
Internet Diplomacy of the 21st century. And this needs new forms of
interaction among governmental and non-governmental stakeholders.

No question, this is difficult. For governments it is certainly new that
they have to undertake efforts to get a civil society body like CSISAC on
board (as in the OECD case) or to live with decisions they do not like (as
in the ICANN new gTLD case).

But a way back to a top-down hierarchical organized decision making process
would be the wrong U-turn. There is no other way than to move forward into
this new field of policy making. What is needed is innovation and creativity
not only in the development of new Internet application and services but
also in Internet policy making.

It is true, that the multi-stakeholder princple is not yet defined. And the
procedures, how the stakeholder should interact both in policy development
and in decision making, are not yet written. Multi-stakeholder governance is
a step into an unchartered territory.

When governments, private sector, civil society and the technical community
enter this *terra incognita*, all sides have first to respect each other -
in their respective roles - and then to learn, how to communicate,
coordinate and collaborate in a new way to achieve sustainable solutions for
a global public trust.

This gets even more complicated because there are many more governments in
this world, who are neither G8 nor OECD or Council of Europe members and
which have their own idea about Internet Governance and multistakeholderism
as China, India, Brazil, South Africa, Saudi Arabia and others.

You don't need the power of prophecy to forecast that Internet Governance
will become a main political battlefield in the 2010sYou don't need the
power of prophecy to forecast that Internet Governance will become a main
political battlefield in the 2010s.

Already the latter half of 2011 will see three major events where the issue
will pop up again: in September 2011, the 6th IGF takes place in Nairobi; in
October 2011, the 2nd Committee of the 66th General Assembly of the United
Nations starts its Internet discussion in New York; and in November 2011,
the leaders of the G20, which include China, Brazil, India, South Africa and
other G77 members, meet in Cannes.
------------------------------

*Wolfgang Kleinwächter is a professor for Internet Policy and Regulation
athte University of Aarhus. He was a member of the UN Working Group on
Internet Governance and chairs the Council of Europe Cross Border Internet
Expert Group. He expresses in this article his personal opinion.*
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