5.4.4. Consensual

For present purposes, consensual models of Internet governance are those that are more likely to emphasise consensus than authority or representation as a key design criterion for the reform of Internet governance institutions. This is, for example, the view of Biegel who writes that “consensus among the various stakeholders will be an essential component” of any programme of Internet governance reform.[1]

Although there is some overlap with both anarchistic and democratic proposals, the consensual model may be differentiated from them in that it more closely reflects the underlying dynamics of governance by network. Unlike in the democratic model, such a network can only operate with the consent of all its participants; yet unlike in the anarchistic model, it also requires the processes by which consensus is reached to be institutionalised by some, perhaps hierarchical, mechanism. Thus Vedel claims that governance by network (or “associative regulation” in his terms) rarely exists or is maintained in the absence of state intervention.[2]

Specific proposals for Internet governance reform that fall into the consensual class may be further subdivided into two categories. First are those that are situated within the existing international law paradigm, thus anchoring the institutions and processes of Internet governance in the international system. Second are consensual governance networks placed outside or parallel to the international system, and which require it to accommodate their autonomous operation, much in the same way as ICANN’s regime of Internet naming and numbering has been accommodated within the international system.

5.4.4.1. Anchored in the international system

The first proposal in the former category is one that emerged from within civil society at WSIS for the establishment of a new specialised agency of the United Nations to be called UNMSP (United Nations Multi-Stakeholder Partnerships).[3] It would essentially act as a bridge between new multi-stakeholder governance networks and the existing international system, by streamlining the process by which such networks are formed and by facilitating states’ participation in them.[4]

The proposed new agency would contain a separate assembly for each stakeholder group, including a General Assembly for governments and Conferences for the private sector and civil society. Conferences would be subdivided by topic, each with a President whom it would elect or appoint, and could convene virtually rather than meeting in person. Conference members would submit proposals for resolutions or recommendations for approval by the General Assembly.

A proposed new multi-stakeholder network formed between participants in the UNMSP would be entitled to receive the UNMSP’s formal imprimatur of endorsement once it had a charter and the sponsorship of at least two states. There would be no need for a treaty to formalise the involvement of these or other states in the network, because this would be covered by the umbrella UNMSP treaty.

Along somewhat similar lines is the proposal for a Framework Convention on Internet Governance,[5] following the model of the Framework Convention on Climate Change.[6]

Such a Framework Convention could be thought of as a constitutional document that would establish the facts, principles and norms of the Internet governance regime,[7] and delineate the respective roles of both intergovernmental and non-governmental institutions of Internet governance.[8] As a practical example of the application of such a Framework Convention, it could supplant the JPA between the NTIA and ICANN in providing a mechanism of international oversight of the management of Internet naming and numbering.

The Tunis Agenda seems to anticipate the development of such an instrument as an element of the programme of enhanced cooperation, stating that the “process could envisage creation of a suitable framework or mechanisms, where justified, thus spurring the ongoing and active evolution of the current arrangements in order to synergize the efforts in this regard.”[9] This need not necessarily be a hard law instrument; for example Anriette Esterhausen of APC suggested at a Best Practice Forum on public participation in Internet governance held in Rio that the Aarhus Convention could be used as the basis for a soft law agreement on Internet governance to which different institutions, both public and private, could become signatories.

The third proposal that seeks to situate multi-stakeholder Internet governance in the international system is really a group of related proposals for the establishment of an Internet Bill of Rights. These proposals include:

Although an Internet Bill of Rights would not, in the same manner as the previous two proposals, provide a meta-structure for a multi-stakeholder Internet governance network, it could, if all stakeholders were involved in its development, provide a baseline of protection for consensually agreed individual rights and interests against incursion from future state (and, indeed, private) action.

A shortcoming of the Bill of Rights proposal is its limited responsiveness to change, since it crystallises the interests of those involved in its development, assuming that the general principles they develop in a specific set of circumstances will remain applicable (or even comprehensible) across heterogeneous issue areas as the Internet continues to evolve.

More fundamentally, for this or indeed the other two proposals noted above to seek to place Internet governance within the existing international system, can be seen as an unprincipled concession to state hegemony that undervalues the legitimacy of the independent role of the other stakeholders in governance. In other words, it reduces transnational law to international law.

5.4.4.2. Autonomous transnational law

In contrast are those proposals for Internet governance reform that are situated apart from the international system. Being divorced from intergovernmental authority does not necessarily mean that these lack an institutionalised structure or process. However it does beg the question, if a governance structure is not anchored in the superstructure of the international system, does it (and, indeed, does it need to) draw upon some other hierarchical source?

Generally, if the Internet governance regimes put forward in these proposals are anchored anywhere else at all, it is in other institutions of Internet governance. Thus Gould suggests that an unwritten constitutional framework could emerge from existing Internet governance institutions, with the addition of an “Internet regulator” which could be ultimately responsible to the Internet Society.[12] Similarly, Stuckey talks of the passage of a constitution for cyberspace, explicating the roles of its existing governance institutions, and providing a base for the development of its own corpus of law and self-regulation.[13] More recently, the self-described Working Group on Constitutional Internet Governance (WGCIG) has inaugurated an online Constitutional Convention alongside the IGF.[14]

An apparent problem with such proposals is that they seek to pull the Internet governance regime up by its own bootstraps, by establishing a transnational legal framework for consensual governance through institutions such as ISOC whose authority only exists as part of that same regime, in a chain of paradoxical self-reference. However, this is not so much of a problem as it may seem: it is possible for a transnational legal regime to establish a self-supporting superstructure, in the same way that the adjudication of international trade disputes occurs pursuant to a system of international commercial arbitration that is itself the product of contract.[15]

However by the same token, it is also possible for a consensual Internet governance network to exist entirely autonomously, supported by nothing other than the inherent force of its own “running code.”[16] This alludes to the famous maxim of David Clark from MIT, which became the credo of the IETF: “We reject kings, presidents and voting. We believe in rough consensus and running code.”[17] In other words, on this account, the institutions and processes of a consensual Internet governance network gain nothing from being anchored in any external authority, so long as their output has been tested in practice and proven effective.

And indeed, it is from the IETF that a number of such initiatives have drawn inspiration. These include the Internet Law and Policy Forum (ILPF)[18] and the Internet Societal Task Force (ISTF).[19]

Originally known as the Internet Law Task Force, the ILPF was established in 1993. It was a private sector organisation divided into six working groups on substantive issue areas, ranging from content regulation to privacy and spam. New working groups could be formed by consensus of the membership, and were responsible for carrying out the ILPF’s work programme, including the production of reports and the development of Consensus Principles. The ILPF also held workshops on specific topics along with an annual conference. The ILPF appears to have become inactive since 2003, having been largely superseded by the CCBI and subsequently BASIS at WSIS.

The ISTF was a project of ISOC formed in 1997 as a complement to the IETF and IRTF. The ISTF was based around a series of working groups and open mailing lists that endeavoured to produce white papers, analogous to the IETF’s RFCs, on public policy issues such as accessibility, privacy and content regulation. Prophetically, Vint Cerf acknowledged in 1999 that this was “taking up a challenge which governments ought to take up.”[20] By the time the ISTF was eventually disbanded in 2002, this is exactly what governments had begun to do, leaving the ISTF’s efforts sidelined.

The weakness of the ISTF, as with the ILPF before it, was that despite the acknowledgement from Vint Cerf that they were seeking to usurp a traditionally public function, and given that Internet governance cannot legitimately be regarded as the domain of the private sector and technical communities alone,[21] there was still no clear understanding of the process by which the participation of states could be attracted without formal intergovernmental sponsorship.

In this respect, ICANN provides a better possible model. ICANN has long been recognised by commentators as a “private corporation that is sculpting itself to perform public-interest functions.”[22] More recently, it has also begun to acknowledge this itself. The last of eleven core values listed in its bylaws, added to that document in the wake of WSIS, states, “While remaining rooted in the private sector, recognizing that governments and public authorities are responsible for public policy and duly taking into account governments’ or public authorities’ recommendations.”[23]

Having said that, ICANN itself (apart from its other problems) has too narrow a mandate to have ever been seriously proposed as a body for generalised Internet public policy governance, as People for Internet Responsibility (PFIR) noted in their prescient proposal of 2000 for the formation of a multi-stakeholder Representative Global Internet Policy Organization. Although this proposal was not taken up, its themes would recur strongly in the WGIG report some five years later. PFIR argued at the time:

Attempts to keep the Internet policymaking process free of government input have often resulted in governments swooping in later, frequently with what might be characterized as "knee-jerk" reactions, often to the detriment of the Internet and its global community. It would be far better to define the participatory role of governments in the first place, and have them as part of the team, rather than as an after-the-fact “spoiler” kept on the sidelines for most of the deliberations process. They deserve to be involved, and they should be involved.[24]

But there is a thin line to tread here. On the one hand, it is necessary to secure the participation of states in any consensual governance network, which will require that they are comfortable with its structure and processes. But on the other, there is no warrant for such a network to submit to the authority of states either as an entrée into the international system (which may compromise the network’s consensual form), or to confer legitimacy upon its output (which state hegemony would only weaken rather than enhance). It is unclear that ICANN, or any other institution of Internet governance, has yet struck the most appropriate balance.

Notes

[1]

Biegel, Stuart, Beyond Our Control?: Confronting the Limits of Our Legal System in the Age of Cyberspace (2001), 360

[2]

Vedel, Thierry, Four Models for Internet Governance (2005), 65

[3]

See http://www.unmsp.org/ and Civil Society Scientific Information Working Group, Substantive Contributions as Material to Synthesis Papers in View of the First Meeting of the Internet Governance Forum (2006), 18.

[4]

Compare the Partnership Development Unit recommended by the Cardoso Report: Cardoso, Fernando H, Cardoso Report on Civil Society (2004), 38.

[5]

Mathiason, John, A Framework Convention: An Institutional Option for Internet Goverance (2004), 1–2

[6]

UN Framework Convention on Climate Change, 9 May 1992, 1994 ATS No 2 (entry into force 21 Mar 2004)

[7]

Mueller, Milton, Mathiason, John, & Klein, Hans, The Internet and Global Governance: Principles and Norms for a New Regime (2007)

[8]

Holitscher, Marc, Internet Governance Revisited: Think Decentralization! (2004), 6

[9]

WSIS, Tunis Agenda for the Information Society (2005), para 61

[10]

APC, Internet Rights Charter (2006)

[11]

GIC, Declaration of Lima (2003)

[12]

Gould, Mark, Governance of the Internet: a UK Perspective (1997), 58

[13]

Stuckey, Kent D, Internet and Online Law (1996), xxiii

[14]

See http://www.wgcig.net/.

[15]

Teubner, Gunther, Global Bukowina: Legal Pluralism in the World Society (1997)

[16]

Stefferud, Einar, Image Online Design, Inc comments on the Registration and Administration of Internet Domain Names (1997), 515

[17]

See Reagle, Joseph, Why the Internet is Good: Community Governance That Works Well (1999) for an extended analysis of the maxim.

[18]

See http://www.ilpf.org/.

[19]

See http://istf-docs.norrnod.se/.

[20]

McCluskey, Alan, The Future of the Internet (1999)

[21]

At least, it cannot in the post-WSIS era; the proposition was more arguable in 1997.

[22]

Franda, Marcus F, Governing the Internet: The Emergence of an International Regime (2001), 76

[23]

ICANN, Bylaws (2006), Article 1, section 2

[24]

Weinstein, Lauren, PFIR Statement on Internet Policies, Regulations, and Control (2000)