|Multi-Stakeholder Public Policy Governance and its Application to the Internet Governance Forum|
I don’t wish to offer an opinion about how the net should be run; that’s like offering an opinion about how salamanders should grow: nobody has any control over it, regardless of what opinions they might have.
|Brian Reid, DEC|
Innumerable colourful metaphors have been used to describe the Internet. On one judicial account, it is a “never-ending worldwide conversation.” If so, then the concept of “governing” the Internet seems inappropriate, as how is a conversation governed, other than by the participants themselves and the social norms to which they subscribe?
Other descriptions of the Internet focus on its technical attributes, defining it as “the publicly accessible global packet switched network of networks that are interconnected through the use of the common network protocol IP,” or to use a more succinct and celebrated metaphor, “the information superhighway.” Following that characterisation, governance of such a highway is arguably the right and responsibility of those whose sovereign jurisdiction it passes through or affects.
Other descriptions again focus on the Internet’s unique sociological attributes, calling it “cyberspace” or “a civilisation of the Mind,” as for them the technology that underlies the Internet is far less important than the social interactions that take place upon it. Considered in this way, as a “virtual nation state” if you will, the question of who should exercise governance over it presupposes that it should not govern itself.
Clearly, each of the characterisations exemplified above has quite different repercussions for the way in which the Internet is to be governed, if at all. This goes some way to explaining the gulf that separates regulators who claim the right to exercise governance over the Internet, and those who decry such incursions of the offline world into online territory as being illegitimate.
As a socially constructed artifact, the Internet is whatever we think it is. For a flag-waving Internet pioneer such as John Perry Barlow of the Electronic Frontiers Foundation (EFF), who thinks of the Internet as the last bastion of personal liberty and independence in an increasingly intrusive and corporatised world, that is what it is, and no external governance of that outpost is morally acceptable.
For a bureaucrat such as Haolin Zhou, former Director of the Telecommunications Standardization Bureau of the International Telecommunications Union, the Internet is directly analogous to the telephone network, and hence the historical exclusion of governments from Internet governance has been nothing more than a historical accident, to be rectified without delay.
It is in this context, with much polarisation on both sides of the debate, that the Internet Governance Forum was established in 2005. The Internet Governance Forum, or IGF, is a forum formed under the auspices of the United Nations, to provide “a transparent, democratic, and multilateral process, with the participation of governments, private sector, civil society and international organisations, in their respective roles,” for dialogue on Internet Governance policy.
But what are “their respective roles”? The agreement calling for the IGF’s inception (the “Tunis Agenda”) draws a distinction between “international public policy issues pertaining to the Internet,” which are to be developed “by governments in consultation with all stakeholders,” and “the day-to-day technical and operational matters, that do not impact on international public policy issues,” which are to be dealt with by “relevant international organisations” with “no involvement” by government.
The distinction is, however, a simplistic one, as technical and policy issues are not so cleanly separated. For example, the decision of ICANN (which, as will be explained below, is the authority responsible for the administration of the root of the Internet’s Domain Name System) to approve in principle a new top-level domain .xxx to be used for hosting sexually explicit Web sites, was seen by governments as a public policy issue, to the extent that they called for the decision to be reversed.
Say that the domain coca-cola.xxx were to be registered and that The Coca-Cola Company were to object; immediately more public policy issues, relating to trademark protection, would arise. Thus, there is a web of interrelation between technical and public policy issues, that makes it difficult for any stakeholder included in technical a forum such as ICANN or a policy forum such as the IGF to be disengaged from involvement in their governance.
The IGF’s output is explicitly “non-binding,” which means that the participation of states in the IGF process does not involve the use of coercive power as is a typical feature of government regulation. In fact since the process is to be “multilateral, multi-stakeholder, democratic and transparent” with “full involvement” of “all stakeholders involved in this process,” governments do not, at least in principle, enjoy any position of preeminence in policy formation through the IGF. Neither should they, if the IGF’s legitimacy and effectiveness are to be assured.
ACLU v Reno (1996) 929 F Supp 824, 883 per Dalzell J, aff’d, (1997) 21 US 844.
WSIS, Tunis Agenda for the Information Society (2005), paragraph 61
WSIS, Tunis Agenda for the Information Society (2005), paras 68, 69, 77
WSIS, Tunis Agenda for the Information Society (2005), paras 29, 73, 77