Multi-Stakeholder Public Policy Governance and its Application to the Internet Governance Forum

Jeremy Malcolm, LLB (Hons) B Com

There are many networks of transport and communication that cross national borders, but the Internet’s infrastructure has been designed to do so with unusual subtlety. As a result, public policy issues raised in governance of the Internet tend to be inherently transnational in nature. This makes the legitimacy of a purely domestic legal approach to Internet governance questionable. The fact that conflicting domestic regimes may interfere with each other, and may clash with the transnational cultural and technical architecture of the Internet, further complicates an approach to governance based around legal rules. But on the other hand more traditional and decentralised mechanisms of Internet governance such as norms, markets and architecture suffer their own deficits of both legitimacy and effectiveness.

Governance by multi-stakeholder network conceptually provides a solution in that it brings together each of the other mechanisms of governance and the stakeholders by whom they are commonly employed. Such a multi-stakeholder approach has begun to permeate (and in some issue areas even to supersede) the existing international system, as partially evidenced in the Internet governance regime by reforms that took root at the World Summit on the Information Society (WSIS) and have begun to find expression in its product, the Internet Governance Forum (IGF).

Governance by network does not however emerge spontaneously, but requires supportive institutional structures and processes. To maximise the legitimacy and effectiveness of these, and to ensure their interoperability both with the international system and with the architecture of the Internet, requires a balance to be struck between the anarchistic and consensual organisational models typified by “native” Internet governance institutions such as the Internet Engineering Task Force (IETF), and hierarchical and democratic models drawn from governmental and private sector examples and from the study of deliberative democracy.

As an early experiment in multi-stakeholder governance by network, the Internet Governance Forum does not quite strike the correct balance: its hierarchical structure under the leadership of the United Nations is incompatible with its multi-stakeholder democratic ambitions, and more importantly it lacks the institutional capacity to fulfil its mandate to contribute to public policy development.

This can largely be redressed by reforming the IGF’s plenary body, and its online analogue, as venues for democratic deliberation, subject to the oversight of an executive body or bureau to which each stakeholder group appoints its own representatives, and which is responsible for ratifying any decisions of the larger group by consensus. In particular, requiring this bureau to broker consensus between stakeholder groups (as in a consociation), rather than just amongst its members at large, can assist to diminish the power games that have limited the IGF to date.

Copyright © 2008 Jeremy Malcolm. Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.1 or any later version published by the Free Software Foundation; with no Invariant Sections, with no Front-Cover Texts, and with no Back-Cover Texts. A copy of the license is included in the section entitled “GNU Free Documentation License.”


Declaration of originality

I declare that this thesis is my own account of my research and contains as its main content work which has not previously been submitted for a degree at any tertiary education institution.

_____________________________

Jeremy Malcolm

Acknowledgements

Before commencing this thesis—originally as a seriously over-ambitious Master of Laws—I imagined that I might be able to carry on managing my law practice and IT consultancy part-time. My former staff, who quickly discovered with me that this was not to be the case, are to be applauded for their forbearance and understanding.

The thesis might never in fact have come to be written at all were it not for my good fortune to secure the supervision of Professor Roger Clarke, most relevantly Visiting Professor at the University of New South Wales in the Baker & McKenzie Cyberspace Law & Policy Centre. During the Masters phase he was ably assisted locally by Dr Ingrid Richardson from Murdoch’s School of Media Communication & Culture. Following the transition to a doctorate, Dr Richardson took a back seat to Dr Verson Nase of Murdoch’s School of Law, who despite always downplaying his contribution, never had any cause to do so. In fact, the support and advice of each of my supervisors has been invaluable, and unenviable given the range of disciplines on which the thesis touches.

I have given a number of presentations on the subject matter of my thesis over the past three years, including a Law Tech Talk hosted by David Vaile, Executive Director of the Baker & McKenzie Cyberspace Law & Policy Centre, a presentation to the inaugural GigaNet conference held in conjunction with the Athens IGF meeting, and presentations at Murdoch University and to the Western Australian Internet Association. I would like to thank the organisers and the participants at each of these sessions for their comments.

I must also acknowledge those who read drafts of the thesis as it was published online, especially my parents Ian and Kaye Malcolm, and the President of the Internet Society of Australia, Tony Hill. The remaining errors and other inadequecies of the thesis are of course my own.

Finally I would like to acknowledge the contributions of the many open source developers who contributed to the software that was used to produce this thesis in its printed and online forms, and in particular I would like to thank Markus Hoenicka, author of RefDB, Chris Karakas, author of Document processing with LyX and SGML, and Dashamir Hoxha, author of DocBook Wiki, for their personal assistance.

My thanks and apologies are extended to any others who have assisted me in the preparation of this thesis but whom I have forgotten to mention specifically. I cannot, however, conclude these acknowledgements without thanking my wife Dominica for her continual support and encouragement, for which I hope I will have the pleasure of repaying her over the rest of our lives together.

Table of Contents
Table of Abbreviations
Table of Cases
Table of Statutes and International Instruments
Preface
1. Introduction
1.1. The hacker ethos
1.2. Genesis of the Internet
1.3. Technical and social architecture
1.3.1. Shaking the architecture’s foundations
1.4. Governance mechanisms
1.4.1. Rules
1.4.2. Norms
1.4.3. Markets
1.4.4. Architecture
1.4.5. Networks
2. Internet governance as it was
2.1. Technical coordination
2.1.1. Historical development
2.1.2. Current arrangements
2.1.3. Criticisms
2.2. Standards development
2.2.1. Standards bodies
2.2.2. Criticisms
2.3. Public policy governance
2.3.1. Internet-related public policy issues
2.3.2. Criticisms
2.4. Governance mechanisms revisited
3. The international system
3.1. International law and international relations
3.1.1. International law
3.1.2. International relations
3.2. Actors in international law
3.2.1. Governments
3.2.2. The private sector
3.2.3. Civil society
3.2.4. New medievalism
3.3. Sources of international law
3.3.1. Hard law
3.3.2. Soft law
3.3.3. Private law
3.4. Limitations of international law
3.4.1. The legitimacy of authority
3.4.2. Jurisdiction
3.4.3. Universality
3.5. Internet governance as law
4. Designing a governance network
4.1. Anarchistic
4.1.1. Anarchy and the Internet
4.1.2. Anarchistic Internet governance
4.1.3. Criticisms
4.2. Hierarchical
4.2.1. Bureaucracy
4.2.2. Oligarchy
4.2.3. Meritocracy
4.2.4. Hybrid models
4.2.5. Anarchistic–hierarchical Internet governance
4.2.6. Criticisms
4.3. Democratic
4.3.1. Representation
4.3.2. Consent
4.3.3. Transparency and accountability
4.3.4. Inclusion
4.3.5. Criticisms
4.4. Consensual
4.4.1. Consensus between stakeholder groups
4.4.2. Deliberative consensus
4.4.3. Consensus in Internet governance
4.4.4. Criticisms
4.5. Multi-stakeholder public policy development
5. Reform of Internet governance
5.1. WSIS
5.1.1. Processes
5.1.2. First phase
5.1.3. WGIG
5.1.4. Second phase
5.2. IGF
5.2.1. Preparations
5.2.2. The First Meeting
5.2.3. Outcomes
5.2.4. The Second Meeting
5.3. Regional initiatives
5.3.1. CGI.br
5.4. Other proposals
5.4.1. Anarchistic
5.4.2. Hierarchical
5.4.3. Democratic
5.4.4. Consensual
5.5. The need for further reform
6. The IGF’s report card
6.1. Other organisations as models
6.2. Role
6.2.1. Policy-setting
6.2.2. Coordination
6.2.3. Development
6.3. Structure
6.3.1. Existing structures
6.3.2. Structural reform
6.4. Processes
6.4.1. Representation
6.4.2. Consent
6.4.3. Transparency and accountability
6.4.4. Inclusion
6.5. A new IGF
A. Comparison of other organisations
B. GNU Free Documentation Licence
B.1. GNU Free Documentation Licence
B.1.1. Preamble
B.1.2. Applicablility and definitions
B.1.3. Verbatim copying
B.1.4. Copying in quantity
B.1.5. Modifications
B.1.6. Combining documents
B.1.7. Collections of documents
B.1.8. Aggregation with independent works
B.1.9. Translation
B.1.10. Termination
B.1.11. Future revisions of this license
Bibliography
Index
List of Figures
2-1. Internet governance organisations
2-2. Public policy issues
2-3. Governance types and mechanisms
4-1. Conceptions of democracy
4-2. On the Internet, nobody knows you’re a dog
4-3. Tools for online democracy
5-1. Substantive issues for the IGF
6-1. Organisations comparable to the IGF