The crucial and contested global public good: principles and goals in global internet governance

Haugen, Hans Morten Article The crucial and contested global public good: principles and goals in global internet governance Internet Policy Review Provided in Cooperation with: Alexander von Humboldt Institute for Internet and Society (HIIG), Berlin Suggested Citation: Haugen, Hans Morten (2020) : The crucial and contested global public good: principles and goals in global internet governance, Internet Policy Review, ISSN 2197-6775, Alexander von Humboldt Institute for Internet and Society, Berlin, Vol. 9, Iss. 1, pp. 1-22, https://doi.org/10.14763/2020.1.1447 This Version is available at: https://hdl.handle.net/10419/214104 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen. 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If the documents have been made available under an Open Content Licence (especially Creative Commons Licences), you may exercise further usage rights as specified in the indicated licence. https://creativecommons.org/licenses/by/3.0/de/legalcode INTERNET POLICY REVIEW Journal on internet regulation Volume 9 | Issue 1 Internet Policy Review | http://policyreview.info 1 January 2020 | Volume 9 | Issue 1 The crucial and contested global public good: principles and goals in global internet governance Hans Morten Haugen Faculty of Theology, Diaconia and Leadership Studies, VID Specialized University, Stavanger, Norway, [email protected] Published on 28 Jan 2020 | DOI: 10.14763/2020.1.1447 Abstract: Demands for a more democratic, transparent and accountable management of the internet were strong when preparing for the World Summit on the Information Society Review (WSIS Review), held in 2015. Partly in response to criticism, the United States initiated a process for transferring responsibility for domain names from the United States to the Internet Corporation for Assigned Names and Numbers (ICANN). Increased accountability was among the key motivations for this change. ICANN practices what have subsequently been termed multi-stakeholder governance. This article finds that this form of governance is preferable to an intergovernmental governance model both in terms of transparency and accountability. Keywords: Global internet governance, Internet Assigned Numbers Authority (IANA), Internet Corporation for Assigned Names and Numbers (ICANN), Internet Governance Forum (IGF), World Summit on the Information Society (WSIS) Article information Received: 31 Jan 2019 Reviewed: 05 Sep 2019 Published: 28 Jan 2020 Licence: Creative Commons Attribution 3.0 Germany Competing interests: The author has declared that no competing interests exist that have influenced the text. URL: http://policyreview.info/articles/analysis/crucial-and-contested-global-public-good-principles-and-goa ls-global-internet Citation: Haugen, H. M. (2020). The crucial and contested global public good: principles and goals in global internet governance. Internet Policy Review , 9 (1). DOI: 10.14763/2020.1.1447 INTRODUCTION Barack Obama stated in 2015, in response to EU criticism over US dominance over the internet: “We have owned the Internet. Our companies have created it, expanded it, perfected it…” (The Verge, 2015). Despite this, the US administration has completed a process of transferring its former stewardship responsibility over a body called IANA (Internet Assigned Numbers Authority), formally a department within the larger ICANN (Internet Corporation for Assigned The crucial and contested global public good: principles and goals in global internet governance Internet Policy Review | http://policyreview.info 2 January 2020 | Volume 9 | Issue 1 Names and Numbers) to ICANN itself (Raustiala, 2017). ICANN is perhaps the most prominent example of a multistakeholder governance model, as opposed to an intergovernmental governance model. The term multistakeholder was not applied to characterise ICANN from its inception in 1998, as will be explained below. The advocacy coalition framework (ACF), developed by Sabatier and Jenkins-Smith (1993) can illuminate the possibilities and challenges that the multistakeholder governance structure (multistakeholderism; see Raymond and DeNardis, 2015) faces, from various actors. According to one author, the complexities and power asymmetries involved in the management of ICANN imply that an alleged “multiple accountabilities disorder” (Koppell, 2005) applies. Civil society organisations (CSOs) believe that the digital divide can be overcome by an internationalisation of internet governance (Weber, 2009, p. 164). Internationalisation is understood as a situation where several states influence how the internet is governed. Calls for change in the global internet governance are frequently heard, as will be seen below, most notably at a meeting hosted by Brazil in 2014 (NETmundial, 2014, p. 6). The domain name system (DNS) and root server administration are crucial elements of global internet governance, which are exercised by ICANN and IANA, and its more detailed structure will be clarified below. The DNS falls under the management of the Transmission Control Protocol and Internet Protocol (TCP/IP) suite (Bygrave, 2015a, pp. 10-16). Internet governance is, however, a wider term encompassing many policy areas (Council of Europe, 2015; Council of Europe, 2011; DeNardis, 2013a) and is defined as: the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet (United Nations General Assembly, 2006, para. 34). By highlighting principles, norms, rules and procedures, the United Nations (UN) implicitly says that internet governance must be more than a mere technical exercise. This definition is wide (Bygrave, 2015a, p. 15), but so is the range of internet governance tasks (Raymond and DeNardis, 2015, pp. 570-572; listing 43 different tasks). There are no international treaties regulating internet governance, and the sources that are applied in the article are (i) declarations from UN summits, (ii) outcomes from the ICANN processes in recent years, (iii) statements from the US government, and (iv) documents from both non-governmental and intergovernmental processes. Even if it is fair to state that the way in which ICANN operates has sidelined the UN, UN sources can be relevant, conceptually and in terms of identifying new approaches (Padovani et al., 2010, p. 367, referring to the 2003 World Summit on the Information Society (UN WSIS)). The same authors found, however, that governmental actors build on a narrower view of which are the relevant internet actors, while non-governmental organisations have a broader understanding of such actors and tend to operate with a more complex terminology, often embedded in human rights. Nevertheless, I will refer to the UN when identifying the principles and goals, acknowledging other lists (Pettrachin, 2018, p. 341; Padovani et al., 2010, p. 365; Mueller et al., 2007, pp. 243-250). This article emphasises the internet governance principles, because these are in greatest need for clarification and because they provide direction for the norms, rules and procedures. The UN The crucial and contested global public good: principles and goals in global internet governance Internet Policy Review | http://policyreview.info 3 January 2020 | Volume 9 | Issue 1 has called for the “development of globally-applicable principles…” [UN General Assembly, 2006, para. 70; UN Working Group on Internet Governance (UN WGIG), 2005, para. 13(a)]. No agreement has emerged, however, as to what these principles are. Moreover, there will be an emphasis on goals and the role of human rights in global internet governance, a topic promoted by Council of Europe (2019; see also Levinson and Marzouki, 2016). The article proceeds as follows: Section 1 outlines the principles of global internet governance, including accountability. Section 2 identifies the goals that are to be ensured by internet governance. Section 3 analyses the processes within some actors in global internet governance, focusing on the International Telecommunication Union (ITU) and ICANN. Section 4 reviews reform proposals for internationalisation or globalisation of internet governance. Section 5 analyses ICANN’s process to accommodate human rights concerns, developing further the critical assessment made by Appelman (2016). The main difference between goals and principles is that goals are about the essential nature of global internet governance while principles refer to the minimum standard of conduct in decision-making relating to global internet governance. As a premise for the argument put forth in the article, it is only by supplementing the overall principle of multistakeholder governance by other substantive principles that ICANN’s overall legitimacy can be adequately strong. Weinberg (2012) understands legitimacy as being external to the organisation, more specifically the perception by relevant actors that a given organisation is an appropriate wielder of authority. Legitimacy is in this article operationalised as encompassing adequate and widely-accepted procedures for participation and accountability. Demonstrating broad-based participation by all stakeholders and mechanisms for holding the ICANN Board to account have been priorities of ICANN, when being met with criticism of neither being transparent, nor democratic or representative. ICANN had from its inception weak legitimacy, seeking to overcome this by (i) (inadequate) systems adopted from US administrative law – but without judicial review; (ii) enhanced representation (elaborated by Malcolm, 2015); and (iii) developing decision-making as consensus (Weinberg, 2000). I have emphasised the terms accountability and participation as an operationalisation of legitimacy for two reasons. First, in the IANA transition process, the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) was established, with two “work streams”: the first (WS1) related to the IANA transition process and the second (WS2) addressing accountability issues beyond this process (ICANN, 2018a, pp. 25-33; see also annexes 5-7; ICANN, 2018d). Hence, enhanced accountability and participatory processes have been identified by ICANN itself as crucial. Second, as the analysis in Section 5 will particularly show, there were attempts to embed ICANN’s activities more explicitly within a human rights framework, and both accountability and participation are recognised as human rights principles. The research question that this article seeks to answer is: Will recent measures taken by ICANN to improve its overall accountability and comply with other principles, as well as fulfilling the goals of global internet governance, improve ICANN’s legitimacy and governance, and hence strengthen the multistakeholder governance model, as opposed to an intergovernmental governance model? The crucial and contested global public good: principles and goals in global internet governance Internet Policy Review | http://policyreview.info 4 January 2020 | Volume 9 | Issue 1 SECTION 1: PRINCIPLES IN GLOBAL INTERNET GOVERNANCE As specified above, principles are understood as the minimum requirement of appropriate conduct that must be complied within all decision-making processes. Robert Alexy refers to principles as “optimization commands” (Alexy, 2000). The Internet Society (ISOC) has identified “fundamental Internet principles” (ISOC, 2015, pp. 2 and 7), but with the exception of openness and multistakeholderism, these principles are not further specified. A second term applied by ISOC is “key Internet principles”, which encompasses openness and the multistakeholder model, as well as stability and integrity, and bottom-up processes (ISOC, 2015, p. 2). A third term applied by ISOC is “these principles”, among which are accuracy, availability, and transparency (ISOC, 2015, p. 2). Hence, it is not evident if the term ‘principle’ has one or several meanings and how these three categories relate to each other. Moreover, in the context of the IANA stewardship transition, ICANN presented the following “principles that were suggested”: inclusive, transparent, global, accountable, multistakeholder, focused [in scope], pragmatic and evidence-based, open [to all voices], do no harm, and consensus-based (ICANN, 2014a). Some of these ten principles are merely describing the ambition of inclusive representation (global), others are not adequately distinct (pragmatic). Hence, they cannot constitute fundamental principles. Another initiative, NETmundial, established with the purpose to challenge the US’ dominant role over the internet in the aftermath of the surveillance practices revealed by WikiLeaks, distinguishes between internet governance principles and internet governance process principles (NETmundial, 2014, pp. 4-7). What NETmundial terms “principles” will in this article be referred to as goals, and what NETmundial refers to as “process principles” will in this article be referred to as principles. In order to clarify principles for internet governance, there is a need to explore other sources. Being the most representative intergovernmental organisation, it is interesting to analyse whether the UN clarifications are helpful. Openness, identified by ISOC as a fundamental internet principle, does not appear in the outcome document of the 2015 UN High-level Meeting (UN, 2015) reviewing the implementation of the 2003 and 2005 phases of the World Summit on the Information Society (UN WSIS). Openness can be a term used to describe adequate internet governance processes (Redeker et al., 2018, p. 307), but the core of such processes are better captured by the term transparency, as will be explained below. Openness has been defined as “open and free communication within the internet, interoperability, standard development…” (Padovani et al., 2010, p. 373), a definition that is closer to describing the essential nature of the internet, in other terms a goal. Hence, I find that openness should rather be termed a goal, as further explained in Section 2 below, than a principle. When openness is applied in the context of describing the internet governance process – operationalised as minimum standard of conduct in decision-making – it can be applied as a principle. The multistakeholder approach seeks to involve all stakeholders, and is a “form of participatory The crucial and contested global public good: principles and goals in global internet governance Internet Policy Review | http://policyreview.info 5 January 2020 | Volume 9 | Issue 1 democracy that attempts to go beyond the limitations of representative democracy, while building on, and including, representative democracy” (Doria, 2013, p. 121). Five stakeholders are identified: governments, the private sector, civil society, international organisations, and technical and academic communities (UN General Assembly, 2016, para. 2); note that the latter was not listed in the UN WSIS (UN General Assembly, 2006, paras. 35-36). The UN confirms multistakeholderism as one fundamental internet principle, but does not specify its content. This is, however, done by Weber, listing nine “factors” of the multistakeholder approach, implying that this approach is seen as a meta-principle (Weber, 2013, p. 103). A distinction can be made between a position holding that no decision on internet governance should be made except through multistakeholder bodies, and a more moderate position holding that most relevant issues should be decided by multistakeholder bodies (Hill, 2013, p. 85). While the multistakeholder approach is currently the dominant approach, it is not uncontested, as will be shown in Section 3 below. Which other internet principles are identified? The three UN WSIS highlighted the three terms “multilateral, transparent and democratic…” (UN WSIS, 2003, para. 48; UN General Assembly, 2006, para. 29; UN General Assembly, 2016, para. 57). These three terms will be reviewed to analyse whether they qualify as a principle in global internet governance, keeping in mind that principle was defined in the introduction as minimum standard of conduct in decision-making. I will now clarify whether these three qualify for being termed principles. Multilateral refers to involving more than two parties, and is usually applied on cooperation between states. There are obvious tensions between being multilateral and being multistakeholder. This was clearly stated by the US National Telecommunications and Information Administration (NTIA) when the so-called “stewardship transition” of IANA to ICANN was launched in 2014: “…NTIA will not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution” (NTIA, 2014). The US authorities are exercising a form of veto power to prevent any interference with the ICANN’s governance model. Hence, under the present system, multilateralism cannot be termed a principle in global internet governance, even if states are represented in the ICANN structure, through the Government Advisory Committee (GAC). Transparency relates essentially to how to facilitate participation in the decision-making process. Hence, transparency, being an overall UN human rights principle (UN Development Group, 2004), it can qualify as an internet principle. In its early years, ICANN was ordered to enhance its transparency procedures (ICANN, 2002; for a critical analysis of the process establishing ICANN, see Weinberg, 2000). Being democratic is to have procedures for installing and replacing decision-making bodies, based on free elections. The current multistakeholder model by ICANN – referring to “groups” (ICANN, 2012) and not “stakeholders” – is not adequately democratic (Gurstein, 2014). While I agree with Gurstein that ICANN is not adequately democratic, and with Malcolm (2008, p. 291) that consensual decision-making describes ICANN better than democratic decision-making, it must be asked whether an international governance system representing such a diversity can ever be adequately democratic, in line with the definition above. ICANN has rather sought the representation of all relevant stakeholders, and to improve its accountability mechanisms. Hence, multistakeholderism is arguably the most inclusive decision-making that ICANN can provide (see: DeNardis, 2013b), and it is difficult to include democracy as a principle in internet governance. The crucial and contested global public good: principles and goals in global internet governance Internet Policy Review | http://policyreview.info 6 January 2020 | Volume 9 | Issue 1 This lack of acknowledgment of democracy as a principle in global internet governance cannot, however, be seen as a lack of recognition of democratic decision-making as an essential value. Bygrave emphasises that the success of the internet is the fact that it “developed in open and democratic decisional cultures…” (Bygrave, 2009, p. 6). Mueller holds, however, that the US control over the DNS has not secured freedom of expression (Mueller, 2016), and that states through the Government Advisory Committee (GAC) of ICANN have too much influence in ICANN (Mueller, 2015; Mueller, 2010, pp. 240-251), as will be explained in Section 3 below. Hence, only one of the principles proposed by the UN can actually be considered to be a relevant principle for decision-making as ICANN works today. The two principles we are left with from these sources are multistakeholderism and transparency. Both are explicitly linked to participation, and can be justified by the theory of reflexive law, which emphasises norm development through participatory processes, rather than through instructions by top-down regulation (De Schutter and Lenoble, 2010). Other labels are proposed, such as “hybrid intergovernmental-private administration” (Ruotolo, 2017, p. 162), characterised by active involvement and commitment by corporations and civil society organisations. Multistakeholderism and transparency specify requirements of an adequate decision-making process. However, accountability – having one’s conduct assessed in relation to externally set norms, with possibilities for administrative or legal sanctions in cases of non-compliance (Koppell, 2005, p. 96) – is missing from the list. The principle of accountability for companies has gained increased recognition recently, constituting one of four elements of due diligence (OECD, 2011, p. 23), as elaborated by the UN Guiding Principles (UNGP) (UN Human Rights Council, 2011). The principle of accountability has been specified and operationalised by ICANN (2018a; ICANN, 2018b, Section 4.6(b)(i); see also ICANN, 2014a and NTIA, 2016). In accordance with its bylaws, ICANN mandated in early 2019 its third Accountability and Transparency Review Team (ATRT). While an ICANN ombudsman has been in operation since 2004 (ICANN, 2017e), the clause on reconsideration in ICANN’s bylaws (ICANN, 2018b, Section 4.2) provides the formal procedure for requesting the ICANN Board to reconsider an action or inaction. Moreover, ICANN has been subject to legal proceedings (ICANN, 2002; ICANN, 2018c). Hence, while internal accountability mechanisms have been strengthened, the US government through NTIA will not allow ICANN to act contrary to US interests, and courts in various countries do provide a form of external accountability (ICANN, 2018c). As a result of the processes relating to the IANA transition, the earlier criticism of ICANN from the global community of internet users, through the At-Large Advisory Committee (ALAC) and the considerably wider At-Large Summit (ATLAS) (ICANN, 2013, p. 53; ICANN, 2009, p. 3), has gradually been replaced with stronger concerns for the positions of states (ICANN, 2014b; p. 2; Bygrave, 2015b). The third ATLAS took place at the ICANN66 meeting in November 2019. Another group of stakeholders, the states, do recognise that existing arrangements for the Internet “have worked effectively…” (UN General Assembly, 2016, para. 55; UN General Assembly, 2006, para. 55). Hence, it is reasonable to state that the tensions over global internet governance are not primarily related to the tasks fulfilled by ICANN and IANA. To sum up, the omission of accountability in the relevant paragraph from the UN WSIS review (UN General Assembly, 2016, para. 57; see also UN WSIS, 2003, para. 48; UN General Assembly, 2006, para. 29) cannot be read to imply that accountability is off the list of principles in global internet governance, in addition to multistakeholderism and transparency. The crucial and contested global public good: principles and goals in global internet governance Internet Policy Review | http://policyreview.info 7 January 2020 | Volume 9 | Issue 1 SECTION 2: GOALS IN GLOBAL INTERNET GOVERNANCE We saw above that openness can be termed a goal of global internet governance. Which other goals are there? Also in this endeavour, it is considered relevant to turn to the UN, as well as other actors, with more direct roles in relevant ICANN processes. The UN has specified that “an equitable distribution of resources, facilitate access for all and ensure a stable and secure functioning of the Internet, taking into account multilingualism” as important in guiding the “international management of the Internet” (UN WSIS, 2003, para. 48). Equitable distribution, access for all, stability and security, and accommodating diversity, being wider than merely “multilingualism”, are on the face of it all relevant, but do they fulfil the criteria specified in the introduction, namely that goals relate to the essential nature of global internet governance? We will review these, starting with stability and security. The so-called NTIA criteria include to “maintain the security, stability, and resiliency of the internet DNS [domain name system]” (NTIA, 2014; see also IANA Stewardship Transition Coordination Group, 2015, p. 7). Stable and secure functioning is a prerequisite for the internet per se, and therefore to be understood as a goal for global internet governance. According to the UN, “equitable distribution of resources” is an important objective in the realm of the global information society overall (UN General Assembly, 2016, para. 1). Can it be termed a goal in internet governance, being about providing internet connections for all that have an adequate speed – or connectivity? While enhanced distribution of resources might be a result of the enhanced connectivity for persons in remote regions and rural areas, it seems difficult to term equitable distribution as an overarching goal in global internet governance. What then about “access for all”? Access can encompass four dimensions: (i) economic access – affordability; (ii) universal access – internet access within a reasonable distance from one’s home; (iii) universal service – having internet in homes; and (iv) universal design – also termed usability, in accordance with Articles 9 and 21 of the Convention on the Rights of Persons with Disabilities (G3ict, The Global Initiative for Inclusive ICTs, 2009). A fifth dimension of access is (v) network neutrality, implying that no-one shall be unjustifiably or arbitrarily excluded from accessing the internet (European Union, 2015; Scott et al., 2015). This was emphasised in the revision in for instance the French law to protect intellectual property on the internet (HADOPI), that from 2013 no longer permits the suspension of internet access for repeated infringers (for a critical analysis of the previous practice, see Jamart, 2013). Hence, it seems justified to term “access for all” an overarching goal. In essence, however, it is difficult to see any major difference between access for all and an open internet, as specified by Padovani et al., as outlined in Section 1 (2010, p. 373). This goal is better referred as open and accessible for all. Finally, “multilingualization” has been specified as a critical internet resource [UN WGIG, 2005, para 13(a)]. A review of ICANN’s At-Large system criticised ICANN’s reliance on English, as this “may be alienating for many” (ITEMS International, 2017, p. 85), and accommodating diversity has been emphasised in the CCWG-Accountability WS2 (ICANN, 2018a, pp. 18-20 and Annex 1). Hence, while maintaining the unity of global internet, the actual internet use must encompass diversity. The crucial and contested global public good: principles and goals in global internet governance Internet Policy Review | http://policyreview.info 8 January 2020 | Volume 9 | Issue 1 Hence, stability and security of the DNS, open and accessible for all, and unity and diversity are important for global internet governance; these can therefore be termed goals. In addition, there are “many cross-cutting international public policy issues that … have not been adequately addressed” (UN General Assembly, 2016, para. 56; see also Global Commission on Internet Governance (GCIG), 2016): (i) information and communication technology (ICT) for development; (ii) human rights (ICANN, 2017a), such as privacy and safety for users; and (iii) confidence and security in ICT, including fighting cybercrime. These “policy issues” will be reviewed here, in order to identify whether they have content that would imply that they qualify as goals in global internet governance. As with the brief review of distribution above, it seems reasonable to state that – notwithstanding the quality and type of infrastructure – positive socio-economic development is most likely a result of enhanced connectivity and access, and cannot be specified as a goal that is distinct from enhanced connectivity and access. Human rights safety issues will be further analysed in Sections 4 and 5 below, but it must be considered uncontroversial to identify safety for internet users in order to protect the right to private life as constituting an overall goal in global internet governance. The last policy issue identified by the UN WSIS was security, which must be understood to include international security. Wider than national security, the mutual survival and safety of people is at the core of international security. Specifically concerning international security, mandates and members for the United Nations Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (UN GGE) has been established five times, first in 2004 (UN General Assembly, 2003, para. 4), and most recently in 2015 (UN General Assembly, 2015, para. 5; for reports, see UN GGE, 2015; UN GGE, 2013; and UN GGE, 2010). The most recently established UN GGE failed to reach consensus during its last session in 2017 (UN Secretary-General 2017, para. 5), but a new initiative is launched (UN General Assembly, 2019). This implies that it is reasonable to add safety and security to the list of overarching goals of internet governance. In summary, four overarching goals that apply to internet governance can be identified: security and stability of the DNS; open and accessible for all; diversity and unity; and safety and security for all. By choosing the term all, this corresponds with the UN approach, implying that all are in principle equal to enjoy the benefits of the internet, in line with a global public goods approach. Raymond (2013) finds, however, that a more precise term is nested club good, as internet is not characterised by equal enjoyment by all. In order to proceed in the analysis of how these four goals are promoted, as these are all relevant for analysing ICANN’s legitimacy, there is a need to have more insight into the relevant actors. SECTION 3: GLOBAL INTERNET GOVERNANCE ACTORS ICANN was established as a private company in 1998, and the US government assigned the governmental responsibility to NTIA (US Government, 1998; Bygrave, 2015a, pp. 59-77; Cogburn 2016, pp. 33-37). The purpose of the establishment of ICANN in 1998 was a “privatization” of the DNS (US Government, 1998; see also Padovani and Santaniello, 2018, p. 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