<a href="http://news.dot-nxt.com/2011/07/27/internet-principle-hype" target="_blank">http://news.dot-nxt.com/2011/07/27/internet-principle-hype</a><br clear="all"><h1>Internet principle hype: how softlaw is used to regulate the Internet [full article]</h1>
<span>
by <a href="http://news.dot-nxt.com/user/23" title="View user profile." target="_blank">Wolfgang Kleinwachter</a> | 25 Jul 2011 | </span>
<div>
<p>No government took note when Tim Berners-Lee at CERN in Geneva published a short summary of his WorldWideWeb project on the <a href="http://en.wikipedia.org/wiki/Newsgroup" target="_blank">alt.hypertext-newsgroup</a> on 6 August 1991. The world was busy with the end of the cold war and the Internet was widely ignored by political leaders.</p>
<p>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".</p>
<p><span>The Internet has climbed up the ladder of political priorities and has now even reached the G8</span><span>The Internet has climbed up the ladder of political priorities and has now even reached the G8</span>.
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. </p>
<p>Three out of 15 pages of the <i>Deauville Declaration</i> 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".</p>
<p>But it is not only the G8 which has discovered the Internet as an issue for high politics in 2011. </p>
<p>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.</p>
<p>Why is such an Internet-Principle-Hype (IPH) emerging, and what will
be the outcome of this governmental and inter-governmental activism?</p>
<p><b>1980s: The Netiquette</b></p>
<p><span>The Internet was never a law-free zone</span>Let's go back to history. <span>The Internet was never a law-free zone</span>.
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.</p>
<p>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. </p>
<p>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, <a href="http://en.wikipedia.org/wiki/Telnet" target="_blank">Telnet</a>, <a href="http://en.wikipedia.org/wiki/Usenet" target="_blank">Usenet</a>, <a href="http://en.wikipedia.org/wiki/Gopher_%28protocol%29" target="_blank">Gopher</a>, <a href="http://en.wikipedia.org/wiki/Wide_area_information_server" target="_blank">Wais</a>, and <a href="http://en.wikipedia.org/wiki/FTP" target="_blank">FTP</a> from educational and research bodies dominated Internet traffic.</p>
<p>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. </p>
<p><span>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</span>Sally 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. <span>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</span>."</p>
<p>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".</p>
<p><span>when
criminals, hate preachers, peadophiles, vandals and terrorists
populated the net at the end of the 1990s, the 'Netiquette' reached its
limits</span>The 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 <span>when
criminals, hate preachers, peadophiles, vandals and terrorists
populated the net at the end of the 1990s, the 'Netiquette' reached its
limits</span>.</p>
<p><b>Private Sector vs. Governmental Leadership</b></p>
<p>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. </p>
<p>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. </p>
<p>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.</p>
<p>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.</p>
<p><span>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</span>Not 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, <span>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</span> to get the Internet under control.</p>
<p>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. </p>
<p>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.</p>
<p>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".</p>
<p>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. </p>
<p>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.</p>
<p>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. </p>
<p>The IGF has no decision making capacity and the outcome of Dynamic
Coalitions is not more (but also not less) than food for thinking.</p>
<p><b>Re-Thinking of Internet Policy Making</b></p>
<p><span>the IGF triggered a re-thinking of the need to have something like a global regulatory framework for the Internet</span>And indeed, <span>the IGF triggered a re-thinking of the need to have something like a global regulatory framework for the Internet</span>.
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.</p>
<p>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. </p>
<p>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. </p>
<p>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.</p>
<p><span>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</span>This Internet-Principle-Hype does not come as a surprise. <span>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</span>. </p>
<p>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." </p>
<p>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."</p>
<p><span>What
we can see here is an important policy shift from a controversial "no
law vs. binding law" constellation to a new soft law approach</span><span>What
we can see here is an important policy shift from a controversial "no
law vs. binding law" constellation to a new soft law approach</span>, for a new 'netiquette' which is aimed not only at the Internet community but at all governments, business and civil society. </p>
<p>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. </p>
<p>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.</p>
<p>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. </p>
<p><a name="13186612d01c5f5d_break"></a>A first brief comparison of all these new documents leads to four interesting conclusions:</p>
<ol><li>All parties support the Multi-stakeholder model (MSM) as a basic governance principles</li><li>All parties support the historically grown architectural principles of an open Internet (e2e)</li><li>All parties identify three main areas where policy is needed: Human Rights, Security and Economy</li>
<li>But the various parties have different priorities if it comes to political issues</li></ol>
<hr>
<p><i>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]'.</i>.</p>
<table border="1" cellpadding="6" cellspacing="0" width="99%">
<tbody><tr>
<th scope="col">Subject</th>
<th scope="col">Council of Europe</th>
<th scope="col">OECD</th>
<th scope="col">USA</th>
<th scope="col">EU</th>
<th scope="col">G8</th>
</tr>
<tr>
<td rowspan="2" bgcolor="#cccccc">Human Rights</td>
<td bgcolor="#cccccc">
<p>[1] Human Rights, Democracy and rule of the Law</p>
</td>
<td bgcolor="#cccccc">[1] Global Free Flow of Information</td>
<td bgcolor="#cccccc">[1] Upholding Fundamental Freedoms</td>
<td bgcolor="#cccccc">
<p>[4] Pro-Democracy</p>
</td>
<td bgcolor="#cccccc">[1] Freedom</td>
</tr>
<tr>
<td bgcolor="#cccccc">[10] Cultural and Linguistic<br>
Diversity</td>
<td bgcolor="#cccccc">[9]<br>
Privacy Protection</td>
<td bgcolor="#cccccc">[3]<br>
Valuing Privacy</td>
<td bgcolor="#cccccc"> </td>
<td bgcolor="#cccccc"> [2]<br>
Privacy Protection</td>
</tr>
<tr>
<td rowspan="3">Security </td>
<td>[3] Responsibility of States</td>
<td>[5] Reloable Data Base for<br>
Policy Making</td>
<td> [4] Protection from Crime</td>
<td> [1]<br>
Civic Responsibility</td>
<td> [5]<br>
Cybersecurity</td>
</tr>
<tr>
<td>[6] Integrity of the Internet</td>
<td>[6] Transparency, fair Process<br>
and Accountability</td>
<td> [5]<br>
Right of Self-Defence</td>
<td rowspan="2"> </td>
<td> [6]<br>
Protection from Crime</td>
</tr>
<tr>
<td> </td>
<td>[13]<br>
Cooperation for Internet Security</td>
<td> Princieple 10: Cybersecurity Due<br>
Dilligence</td>
<td> </td>
</tr>
<tr>
<td rowspan="4" bgcolor="#cccccc">Governance </td>
<td bgcolor="#cccccc">[3]<br>
Multi-stakeholder Governance</td>
<td bgcolor="#cccccc">[5]<br>
Multi-stakeholder PDPs</td>
<td bgcolor="#cccccc"> [9]<br>
Multi-stakeholder Governance</td>
<td bgcolor="#cccccc"> [3]<br>
Multi-stakeholder Governance</td>
<td bgcolor="#cccccc"> [4] Multi-stakeholder Governance</td>
</tr>
<tr>
<td bgcolor="#cccccc">[4] Empowerment of Users</td>
<td bgcolor="#cccccc">[6] Voluntary Developed Codes<br>
of Conduct</td>
<td rowspan="3" bgcolor="#cccccc"> </td>
<td bgcolor="#cccccc"> [7]<br>
Transparent Governance</td>
<td rowspan="3" bgcolor="#cccccc"> </td>
</tr>
<tr>
<td bgcolor="#cccccc">[7] Decentralized Management</td>
<td bgcolor="#cccccc">[10] Individual Empowerment and<br>
Responsibility</td>
<td rowspan="2" bgcolor="#cccccc"> </td>
</tr>
<tr>
<td bgcolor="#cccccc"> </td>
<td bgcolor="#cccccc">[14]<br>
Enforcement</td>
</tr>
<tr>
<td rowspan="3">Technology/<br>
Architecture </td>
<td>[5] Universality of the<br>
Internet</td>
<td>[2]<br>
Open, distributed and interconnected<br>
Internet</td>
<td> [6]<br>
Global Interoperability</td>
<td> [2]<br>
One Internet</td>
<td rowspan="3"> </td>
</tr>
<tr>
<td>[8]<br>
Open Architecture</td>
<td rowspan="2"> </td>
<td> [7] Network Stability</td>
<td> [5]<br>
Open Architecture</td>
</tr>
<tr>
<td>[9]<br>
Open Network</td>
<td> [8]<br>
Reliable Access</td>
<td> </td>
</tr>
<tr>
<td rowspan="4" bgcolor="#cccccc">Economy </td>
<td rowspan="4" bgcolor="#cccccc"> </td>
<td bgcolor="#cccccc">[3] Investment and Competition<br>
in High Speed Broadband</td>
<td bgcolor="#cccccc"> [2] Respect for Property</td>
<td bgcolor="#cccccc"> [6]<br>
User Confidence</td>
<td bgcolor="#cccccc"> [3]<br>
Protection of Intellectual Property</td>
</tr>
<tr>
<td bgcolor="#cccccc">[4]<br>
Cross Border Delivery Service</td>
<td rowspan="3" bgcolor="#cccccc"> </td>
<td rowspan="3" bgcolor="#cccccc"> </td>
<td rowspan="3" bgcolor="#cccccc"> </td>
</tr>
<tr>
<td bgcolor="#cccccc">[11]<br>
Creativity and Innovation</td>
</tr>
<tr>
<td bgcolor="#cccccc">[12] Limits to Intermediary<br>
Liability</td>
</tr>
</tbody></table>
<hr>
<p>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. </p>
<p>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. </p>
<p>The Universal Declaration on Human Rights (1948) is a set of principles which are legally non-binding. </p>
<p>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. </p>
<p><span>As
experience has demonstrated, the political power of the principles of
the Human Rights Declaration can't be underestimated. But principles are
not enforceable.</span><span>As
experience has demonstrated, the political power of the principles of
the Human Rights Declaration can't be underestimated. But principles are
not enforceable.</span> Like the netiquette the only things one can do is naming and shaming.</p>
<p><b>The new Triangle</b></p>
<p>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.</p>
<p>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. </p>
<p>For the OECD, it is innovation, economic growth and the protection of intellectual property which is most important. </p>
<p>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. </p>
<p><span>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</span>This prioritization does not
mean that the Council of Europe ignores security and economy or the OECD
and the US government ignores Human Rights. <span>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</span>. 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.</p>
<p>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. </p>
<p>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.</p>
<p>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. </p>
<p>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. </p>
<p>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.</p>
<p>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. </p>
<p>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. </p>
<p>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).</p>
<p><b>Moving Forward into Unchartered Territory</b></p>
<p><span>while
everybody seems to agree on multi-stakeholderism, there are
uncertainties and deep differences in what is understood by this vaguely
defined principle</span>Those cases lead to another problem: <span>while
everybody seems to agree on multi-stakeholderism, there are
uncertainties and deep differences in what is understood by this vaguely
defined principle</span>. </p>
<p>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.</p>
<p>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. </p>
<p>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. </p>
<p><span>The tools of the 20th century diplomacy are not adequate anymore</span><span>The tools of the 20th century diplomacy are not adequate anymore</span>.
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.</p>
<p>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). </p>
<p>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.</p>
<p>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. </p>
<p>When governments, private sector, civil society and the technical community enter this <i>terra incognita</i>,
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.</p>
<p>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.</p>
<p><span>You don't need the power of prophecy to forecast that Internet Governance will become a main political battlefield in the 2010s</span><span>You don't need the power of prophecy to forecast that Internet Governance will become a main political battlefield in the 2010s</span>. </p>
<p>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.</p>
<hr>
<p><i>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.</i></p>
</div><br>