A battle is brewing, but the black helicopters are not about to invade.
- By Rebecca MacKinnon<p> Rebecca MacKinnon is a Schwartz senior fellow at the New America Foundation, a former CNN bureau chief in Tokyo and Beijing, co-founder of the citizen media network Global Voices, and author of Consent of the Networked: The Worldwide Struggle for Internet Freedom. </p>
On Aug. 2, the U.S. House of Representatives passed a resolution urging the White House to stop an obscure U.N. agency from asserting greater control over the Internet. It is the "consistent and unequivocal policy of the United States," the lawmakers affirmed, "to promote a global Internet free from government control and preserve and advance the successful multistakeholder model that governs the Internet today."
President Barack Obama’s administration sometimes finds itself at odds with members of Congress who oppose nearly everything the United Nations does on principle. Secretary of State Hillary Clinton recently complained of "black helicopter" conspiracy theorists harming the national interest after they blocked U.S. ratification of the Law of the Sea treaty for the second time.
When it comes to the Internet, however, Congress, the White House, technology companies, and civil liberties groups are all on the same page: All agree that the United Nations — a body representing the interests of governments — should not be given control over a globally interconnected network that transcends the geography of nation-states. The Internet is too valuable to be managed by governments alone. Yet there is less agreement over how well the alternative "multistakeholder" model of Internet governance is working — or whether it is really serving all of us as well as it might.
The immediate threat to the Internet as we know it is the World Conference on International Telecommunications (WCIT) scheduled for December in Dubai by the International Telecommunication Union (ITU), a U.N. body whose remit has thus far been limited to global telephone systems. Members meet behind closed doors. Their policy proposals were until recently accessible only to members — until activists forced transparency upon them through a website called "WCITLeaks." The leaked documents reveal how a number of governments — in league with some old-school telecommunications companies seeking to regain revenues lost to the Internet — are proposing to rewrite global international telecommunications regulations in ways that opponents believe will corrode, if not destroy, the open and free nature of the Internet. (For readers wanting to delve into details, a number of nonprofit organizations including the Center for Democracy and Technology and the Internet Society have published analyses of the leaked documents and other recent ITU statements.)
A number of countries, including Russia and China, have put forward proposals to regulate aspects of the Internet like "crime" and "security" that are currently unregulated at the global level due to lack of international consensus over what those terms actually mean or over how to balance enforcement with the protection of citizens’ rights. Other proposals focus on changes to who handles technical coordination and the setting of standards that enable all the devices, networks, and software across the Internet to communicate and connect with one another. Most of those technical coordination functions are currently handled by a constellation of institutions whose doors are open to all groups with a "stake" in the Internet’s future: engineers, activists, unaffiliated individuals, and corporate and government representatives.
These institutions are not exactly household names. Only a tiny fraction of the billion-plus people on the planet who increasingly depend on the Internet have ever heard of the U.S.-based nonprofit Internet Corporation for Assigned Names and Numbers (ICANN), which coordinates the global domain-name system, the collection of regional Internet registries that coordinate IP addresses, or the Internet Engineering Task Force (IETF), which develops global technical standards so that devices and software all around the world can interoperate with one another — let alone any of the other organizations that coordinate Internet-related resources and standards.
This governance ecosystem has worked astonishingly well in managing the Internet’s exponential growth, largely because the system is so open and decentralized that any person anywhere on Earth with engineering or software-programming skills can invent new software applications, devices, and other networked technologies that can all interconnect with one another without needing to obtain permission or buy a license from anybody.
Some other ITU proposals would shift some of these organizations’ roles to the ITU itself, which — because it primarily serves the interests of U.N. member states and excludes other stakeholders in its decision-making processes — will reflect a bias toward centralization, bureaucracy, predictability, and control. This would inevitably corrode if not destroy the Internet’s openness and permission-free qualities that have made the Internet such a powerful platform for innovation and empowerment.
This is by no means, however, the first attempt by powerful governments to assert power through the ITU. China, Russia, and many developing countries have complained for nearly two decades that the new, nongovernmental multistakeholder institutions are dominated by Americans and Western Europeans who manipulate outcomes to serve their own commercial and geopolitical advantage. These critiques converge with the interests of former and current state-owned phone companies wanting to restore revenues of yore before email and Skype wiped out the need for most international phone calls. "There is still a continual theme that the glories of the past in terms of the telco monopolies of decades ago can somehow be reconstructed within the landscape of the Internet," writes Geoff Huston, chief scientist at the Asia Pacific Network Information Center. Doing so might also raise government revenues in some places, and thus a number of developing-country governments have lined up behind Russia, China, and other authoritarian regimes in support of empowering the ITU.
But will they succeed? "There is no doubt that some governments, notably Russia, would like to see the ITU replace ICANN and other private sector-based Internet institutions," Syracuse University professor Milton Mueller wrote in a recent blog post recapping much of the history and distilling highlights from his book on the struggle published two years ago. "What most people don’t realize, however, is that certain governments have advocated that position for more than a decade — and they have repeatedly failed to realize those goals."
The last major Internet governance fight — or at least the last one to make it into the English-language mainstream media — took place in 2005 during the run-up to a U.N. meeting called the World Summit on the Information Society. At that time, governments wound up agreeing more or less to maintain the status quo, due to a lack of consensus combined with loud opposition to increased U.N. management of Internet resources by human rights and free speech groups. A global coalition of activists, Internet companies, and some (but not all) democracies have once again joined forces as they did seven years ago to save the Internet from the U.N. yet again. Chances are that if they fight as hard as they did before, they can stop most of the new ITU proposals. But if they do win this battle, it will not be the last. "It’s going to go on for some while now," says the Internet Society’s Sally Shipman Wentworth, who is working to bolster international awareness and support for multistakeholder governance of an open Internet. In the long run, she warns, "there’s no guarantee that the Internet or the telecommunications infrastructure as we know it today will emerge unscathed."
Defending a free and open global Internet requires a broad-based global movement with the stamina to engage in endless — and often highly technical — national and international policy battles. Fortunately, 2012 has seen major growth of that movement, starting with the January defeat in the United States of the Stop Online Piracy Act (SOPA), which opponents argued would serve the entertainment industry’s interests at the expense of Internet users’ fundamental rights. Then in July came the defeat in the European Parliament of the Anti-Counterfeiting Trade Agreement (ACTA), negotiated behind closed doors between the United States and 34 trading partners, which Internet freedom advocates widely opposed because it encourages governments to privilege the rights of certain copyright holders over the rights of everybody else who uses the Internet, without sufficient guarantees that the enforcement mechanisms won’t be abused for political or other purposes. The political groundswell against ACTA in Europe and elsewhere is part of a worldwide movement against closed-door Internet policymaking conducted nationally and internationally by corporate and government elites.
On the heels of these victories, the ITU’s plan to hold a closed-door meeting with a nontransparent policymaking process raised the ire of activists still energized from victories against SOPA and ACTA. An open letter signed by a broad coalition of civil society groups from all over the world has demanded that the December meeting in Dubai be opened to civil society participation, development of a formal public consultation process, and the public release of all policy documents. ITU Secretary-General Hamadoun Touré declined to meet those demands, but agreed to publish one document listing all the proposals (with names of proposing countries and other details redacted). The format of the meeting and ITU policy formulation process will not be changed, but Touré pointed out that people are welcome to engage with their national ITU delegations if they want to ensure that their governments are adequately representing their citizens’ interests at the table.
The Internet Society has responded by compiling information about how (or if) the different national delegations are engaging with other stakeholders in their countries. In late July, a gathering of African civil society groups published a joint declaration calling for — among other things — open and transparent Internet policymaking and multistakeholder Internet governance. Just this week, on Aug. 7, a European letter led by the Bulgarian delegation piled on, calling on governments "to overcome their desire for more control, and instead consider more sharing." The signatories also offered a list of things that concerned citizens can do to add their voices and actions to a growing global movement.
The movement on its own may not be enough, however. If multistakeholder Internet governance is to survive an endless series of challenges, its champions must commit to serving the interests and protecting the rights of all Internet users around the world, particularly those in developing countries where Internet use is growing fastest. This means that the United States and other Western governments, along with the world’s most powerful companies, will not always be able to obtain the outcomes they want from global multistakeholder processes. Indeed, some libertarians argue that the U.S. Congress — with legislative efforts like SOPA — is arguably as much a threat to the Internet as the United Nations. The Obama administration demonstrated with ACTA — negotiated in secret for four years until WikiLeaks published a draft in May 2008 — that, when left to its own devices without sufficient public pressure, it too can be secretive and unaccountable.
Noncommercial participants in ICANN’s policymaking structures have been complaining for years that Western companies hold too much power within that organization and that Western governments have worked to further national commercial interests at the expense of global Internet users. One example was a last-ditch effort in 2011 by U.S. and EU government representatives to stop the rollout of ICANN’s expansion of new top-level domain names (the part of the domain name that comes after the "." like .com or .gov) because people might create new suffixes that could threaten the trademarks of Western companies. Yet the top-level domain program has received a great deal of support from governments, companies, and civil society groups in the developing world and in countries where languages use non-roman scripts like Chinese, Arabic, Persian, and Russian, to name just four. In fact, ICANN’s long delay in expanding top-level domains was for years a huge source of discontent with ICANN among non-Western participants.
Another problem, as the Electronic Frontier Foundation’s Katitza Rodriguez recently noted, is that "still a large part of the world’s population feels excluded from international Internet policymaking venues" — even multistakeholder ones. That is because even though participation is in theory open to anybody, in practice only a limited number of groups from outside the developed West can afford the time and have the technical expertise, English-language skills, and funds to send people around the world to attend regular meetings. The result is that non-English-speaking developing-world Internet users are underrepresented in organizations like ICANN. According to Alex Gakuru, who was elected in 2009 to represent the African constituency in ICANN’s Non-Commercial Stakeholder Group, when he first attended a meeting of ICANN’s main policy-development organization, "I was the only black man." Then he joined a working group to represent noncommercial interests in resolving a particular issue in the domain-name system. Speaking at a recent conference in Nairobi, he described a frustrating experience:
They did not want me there, so they said things like, you don’t have so many years of experience in ICANN; you just joined not so many years; you weren’t here when ICANN was formed. So I said, "OK, in other words, nobody from the developing world is good enough to participate in ICANN? If that’s so, why don’t you just tell me and we can announce it to the board?’ Then they said, "Oh no, you can join."
Groups like the Internet Society are working to address the diversity problem by sponsoring fellowships for engineers and members of civil society groups from the developing world to attend ICANN and the IETF meetings. They are also bringing developing-world officials to IETF meetings, where the Internet’s technical standards are debated and agreed upon, to experience consensus-based policy processes driven not by bureaucrats but by a mix of engineers, business and government representatives, activists, and nonprofits. The hope is that many governments will become more supportive of multistakeholder processes once they have more experience with them. "The engineers say, we’re not going to solve your political problems. But we have solutions to your technical problems," says the Internet Society’s Wentworth. After attending a recent IETF meeting, she reports, officials from Ivory Coast, Senegal, and Cameroon started sending engineers to the IETF for the first time, when in the past their governments had only dealt with the U.N.’s ITU.
Even if multistakeholder governance organizations do grow much more diverse, another problem remains. With so many stakeholders from around the world espousing so many different interests and concerns, one still cannot be sure that the rights of the world’s most vulnerable and underrepresented Internet users will be protected without a common set of values and core principles. This is why, argues the Electronic Frontier Foundation’s Rodriguez, "human rights must form the baseline for any multistakeholder Internet policymaking." The problem is that "current processes do not guarantee human rights will be respected and maximized."
Here’s where the United Nations is actually useful. While it is clearly the wrong organization to coordinate Internet standards and regulations, the world body has played an essential function in establishing a human rights framework for Internet policymaking on a global scale. Thanks in no small part to U.N. human rights-focused institutions, a global consensus is growing that the Internet’s development must be grounded in the principles enshrined in a set of global human rights agreements, including the Universal Declaration of Human Rights and its two associated covenants. In July, the U.N. Human Rights Council passed a resolution affirming that these human rights principles extend to the Internet. Last year, the U.N. special rapporteur on freedom of expression, Frank La Rue, issued a seminal report on the challenges as well as the opportunities created by both governments and industry when it comes to online free expression. These documents are now being used by human rights advocates around the world as a basis for human rights-grounded policymaking that is increasingly difficult for governments or corporations to dismiss.
History has shown that all governments and all corporations will use whatever vehicles available to advance their own interests and power. The Internet does not change that reality. Still, it should be possible to build governance structures and processes that not only mediate between the interests of a variety of stakeholders, but also constrain power and hold it accountable across globally interconnected networks. Right now, the world is only at the beginning of a long and messy process of working out what those structures and processes should look like. You might say we are present at the creation.