6.4.3. Transparency and accountability

One example has just been given of a circumstance in which mechanisms of accountability are needed to guard against the subversion of democratic processes by those in power; in that case, the bureau’s power to influence the substantive programme of the IGF through its subjective assessment of the consensus of its plenary body. But numerous other examples can be given of circumstances in which transparency and accountability are as important as structure and process in ensuring that the IGF does not lapse into oligarchy.

6.4.3.1. Transparency

For instance, because the Advisory Group meets behind closed doors and utilises a secret mailing list, it was possible for one of its members to quietly insinuate that private sector support for the IGF and its Secretariat would be withdrawn if reforms unacceptable to that stakeholder group went ahead.[1] But for that communication being leaked, stakeholders at large might never have had as complete an explanation for the omission of those reforms from the IGF’s agenda for Rio.

It is difficult to reconcile the Advisory Group’s non-compliance with even the most fundamental requirements of democratic transparency, such as the publication of minutes of its meetings, with the UN Secretary-General’s promise at the outset that “the Advisory Group will carry out its work in an open, inclusive and transparent manner, and will seek to make the best possible use of electronic working methods, including online consultations.”[2]

Admittedly, there has been gradual if belated progress towards the rectification of this much-criticised deficiency. Since September 2007, notes of meetings of the Advisory Group meetings have been released.[3] In February 2008, a commitment was made on the front page of the IGF’s Web site to make “[d]igests of the discussion held within the Advisory Group ... available on the Forum Section on a regular basis.” Suitably, the first two of these digests, published in anonymised form, were a selection of postings considering the topics of the Advisory Group’s rotation,[4] and how its transparency could be further improved.[5]

Even so, the democratic transparency of a number of the other organisations to which the IGF has been compared in this chapter still far exceeds that of the Advisory Group, including in the case of ICANN’s GNSO and ALAC, as well as CGI.br, the publication of full audio recordings of their meetings (omitting only the discussion of commercially or legal sensitive matters). ICANN also publishes an official blog as a less formal counterpart to the minutes of its board meetings.[6]

The Advisory Group’s self-imposed seclusion, whilst incongruous, matches that of one other notable institution of Internet governance: ICANN’s GAC. This is, of course, no coincidence, and points to the principal explanation for each body’s lack of transparency: that governmental representatives are reticent about speaking freely and on the record during intergovernmental negotiations.

This is for at least two reasons. The first is to avoid the potential diplomatic embarrassment that they might cause in inadvertently speaking against domestic government policy. As one of the civil society delegates to WSIS put it:

Governments are often well-disposed and willing to cooperate with us, but governmental delegates don’t have the same flexibility as we do to propose, negotiate and adopt any proposal. Most of the time, they have to refer to their capitals for approval, whereas we are able to take decisions more quickly and defend our points of view.[7]

The second reason, which may also apply within other stakeholder groups, is that because decision-making within the Advisory Group could require stakeholders to compromise their publicly-stated positions, allowing them to do this privately minimises their potential loss of face. It is for the same reason that the grand coalition of a consociation normally convenes in private.[8]

Thus the democratic transparency of the Advisory Group has been traded off against the concerns of governments (and perhaps other stakeholders) to avoid the risk of diplomatic embarrassment and loss of face associated with an open democratic process. Whilst this can, perhaps, be justified on the pragmatic grounds that only by making such a trade-off will those stakeholders be persuaded to participate at all, in the absence of a conceptual justification, such a trade-off could only legitimately be agreed by multi-stakeholder, democratic means—which it has not been.

Having said that, the Secretariat has also attempted, though with limited success, to balance the concerns of governments with the need for transparency through the following measures:

The failure of these measures to be reflected in the level of the Advisory Group’s transparency in practice indicates that a more radical approach to the problem of governmental participation is called for in the case of the proposed multi-stakeholder bureau.

This is provided by the consociational multi-stakeholder process developed above. This process, as it will be recalled, is divided into three phases: assessing the consensus of the plenary body, developing draft recommendations encapsulating that consensus, and then ratifying such draft recommendations by consensus between the stakeholder groups.

There are no reasonable grounds for contention over the need to maintain transparency during the first phase: whether the plenary body has reached consensus on a particular issue or not is a question of fact, which bears no necessary relation to the views of the stakeholder representatives within the bureau on that issue, nor calls for any negotiation on or compromise of those views.

The second phase is more problematic, in that the process of democratic deliberation during this phase will normally require governmental representatives to state, justify and negotiate positions. However, because no formal decision-making takes place in the second phase, these positions are only required to be provisional. This reduces the strength of governmental arguments against the maintenance of transparency during the second phase. Moreover, to the extent that those arguments still do carry, they may justify such compromise measures of transparency as are employed in the existing Advisory Group as outlined above, if agreed by multi-stakeholder, democratic means.[12]

It remains the case that some final negotiations (which on the experience of WSIS will most likely be between governments in private) may be required before recommendations can be formally agreed. But that is the express purpose of the third phase, in which each of the stakeholder groups deliberates in isolation (though not necessarily in seclusion) on whether to exercise its power of veto. Because the second and third stages of the consociational multi-stakeholder process are designed with the flexibility to be iterative, if the separate deliberation of a stakeholder group raises new issues not taken into account in the draft under consideration, the power of veto can be exercised and these issues brought back before the bureau as a whole for further deliberation.

Because each stakeholder group determines its own processes to employ during this final phase, they might not be transparent at all (and in the case of governments, probably will not be). Whilst this may make that phase of the process less democratic overall, this shortcoming is limited by the fact that the third phase is in many ways the least important, taking place as it does after multi-stakeholder deliberation has already resulted in democratic agreement on a draft recommendation, and provided a background of reasoned and balanced argument for the stakeholder groups to individually consider. Indeed, the third phase serves only to provide a mechanism for formal decision-taking that upholds the autonomy of each stakeholder group.

If consensus is reached upon a certain issue at both the plenary level and within the bureau as a whole, this is not nullified by the failure of one of the stakeholder groups to ratify a formal recommendation on that issue. Rather, this simply means that the IGF has no formal output to use in interfacing with other bodies acting in this issue area. The plenary’s consensus may nonetheless possess normative weight with those other bodies, regardless of the bureau’s recognition and ratification of it, particularly as the IGF consolidates its social capital and thereby its influence within the Internet governance regime over time.

Furthermore, the transparency of the processes adopted by a particular stakeholder group need not be taken as given over the longer term. The transnational democratic programme, which is reflected in the IGF’s mandate to “[p]romote ... WSIS principles in Internet governance,”[13] seeks to further democratise all layers of governance, in order to preserve democratic freedoms in a new medieval world in which the authority of pluralistic public and private actors overlaps.[14]

6.4.3.2. Accountability

Chapter 4 discussed the difficulty of applying criteria of accountability specific to other contexts, such as liberal democratic states or domestic administrative agencies, to assess the performance of transnational governance networks such as the IGF.[15] In the absence of an appropriate general framework of accountability applicable to the IGF, it was concluded that a balance of bottom–up, top–down and peer-to-peer accountability should be constructed by reference to best practices observed elsewhere, assessing their overall adequacy by reference to general democratic principles. This can now be undertaken using the exemplar organisations as case studies where relevant.

Beginning with bottom–up accountability, this relates to the extent to which the actions of the IGF’s decision-making organs can be demonstrated to fulfil the democratic principle by deriving from the consent of the stakeholders who make up its membership. In other contexts, bottom–up accountability may be provided by regular, free and fair democratic elections, or thorough the design of participatory democratic processes for soliciting public input into proposed policy-making.

In the case of the IGF, they are provided by the transcription of open consultation meetings and plenary sessions, and the publication of stakeholders’ written contributions. These currently provide the only basis against which to assess the congruence of the actions and decisions of the Secretariat and Advisory Group with the consensus of the stakeholders at large.

The limitations of these documents are evident, however. First, as Nitin Desai admitted in the February 2007 open consultations, it is something of “a labor of love to go through that record ... we may have to do a little bit more to direct people in the right way, because saying that there’s 15 hours of transcript is, I’m not sure enough.” On the account given here, the preparation of a balanced report of the discussions of stakeholders at meetings, along with a synthesis of written contributions, is another of the responsibilities that properly falls to the multi-stakeholder bureau.[16]

A second limitation is that the Secretariat and Advisory Group have made no reference to the transcripts or synthesis papers to justify their decisions, but have simply asserted that “broad agreement” or an “emerging consensus” has existed to support the decisions made.[17] It is for this reason that it was proposed above that the multi-stakeholder bureau should, following ICANN’s example, document its assessment of the consensus of the plenary body in much more exacting detail.[18]

A third and final limitation on the existing mechanisms of bottom–up accountability for the IGF is that in the event that the decisions of the Secretariat or Advisory Group are found not to be in accord with the consensus of the plenary body, there is very little that can be done about it. The introduction of a randomly-selected, multi-stakeholder and democratic nominating committee, as proposed in this chapter, overcomes this problem, by making the proposed multi-stakeholder bureau—and through it, the Secretariat—accountable to the stakeholders on whose behalf they are required to act.

Moving on to top–down mechanisms of accountability, at present the IGF as a whole is subject to the supervision of the Secretary-General of the United Nations, who is required in turn to periodically report on the IGF’s affairs to the General Assembly and to recommend whether it should continue after the fulfilment of its initial mandate.[19] As already noted, this is a conceptual anomaly. The IGF’s status as a transnational governance network precludes its subjection to top–down supervision, since no other multi-stakeholder, democratic institution yet exists to which it could legitimately be made accountable.[20]

Therefore whilst the Secretary-General may retain his formal role of oversight at least in the short term for political reasons, it is desirable that the IGF meanwhile develop an additional and more legitimate layer of top–down accountability. Even without any appropriate transnational governance institutions to exercise such oversight, the IGF can design internal hierarchies (or networks) of its own to provide a structure for accountability,[21] much as the accountability of a liberal democratic state is furthered by the system of mutual checks and balances between its legislative, executive and judicial branches.

An example of this principle in practice is given by auDA.[22] One of the objects established in its constitution is “to develop and establish a policy framework for the development and administration of the .au ccTLD.”[23] Formal responsibility for this role lies with the Board of Directors, but in doing so it acts upon the report of a specialised Advisory Panel, which is convened as required to conduct public consultations and to generate recommendations for the Board’s consideration. The Chair of the Advisory Panel is appointed by and reports to the Board, and in turn appoints the panel’s other members.[24]

The division within auDA between the site of formal policy-setting authority and the process of policy development, along with the fact that the Board does not directly appoint the members of the Advisory Panel, are both characteristic of the separation of legislative and executive powers that exists to varying degree in most liberal democracies.

Even so, a number of shortcomings in the accountability of auDA’s policy development process have still been identified. First, the Advisory Panel is accountable to the Board for its output, but not for its processes, which are devised at its own discretion. Thus for example, because the Chair of the Advisory Panel is not accountable for the selection of Advisory Panel members, the transparency of that process has been criticised,[25] as has the process of building consensus within the Panel.[26] Leaving aside the merits of these specific complaints, scholar John Selby has concluded that

greater transparency, procedural fairness, accountability and an appeals process would improve the decisions made by auDA’s policy development committees without significantly impacting on flexibility.[27]

The second shortcoming is that when the Board of auDA elects to engage in policy development on its own account, there is no top–down accountability to constrain the process it employs. As a result, as former auDA board member Kim Davies writes:

There have been some cases when operational changes or new policies have been implemented without advance notice to the general public, with no ability for public participation in the policy’s formulation other than through indirect means such as lobbying auDA directors. As it has not been practice for board members to explain their deliberations in public, or canvas specific opinion on an issue prior to decision-making, this is not an effective mechanism to channel contributions into the board’s considerations.[28]

How then can the IGF’s processes incorporate top–down accountability whilst avoiding the errors drawn from the lesson of auDA? First, dynamic coalitions should be accountable to the bureau not only for their output, but also for their processes. As suggested above, this can be done by requiring them to document the processes by which their recommendations were reached, to ensure that they are multi-stakeholder and democratic.[29] For dynamic coalitions that operate online, mechanisms of accountability can also be built into online tools at an architectural level[30] (for example, by automatically creating public archives of discussions).

Second, there should be a clear separation between the formal decision-taking role of the bureau and the policy development role of the plenary body. Such a separation is enshrined in the structure and processes proposed in this chapter, whereby the bureau has no authority to make recommendations other than in accordance with its assessment of the consensus of the plenary body as a whole. An additional benefit of the separation of formal authority from the plenary body is that this is more conducive to free and open deliberation than the fusion of authority and deliberation, which tends to politicise discussion.[31]

A third recommendation for enshrining top–down accountability in the IGF, although only fleetingly suggested in the discussion of auDA above, is that there should be a power of review, such as that exercised by the judicial branch of government that balances the legislative and executive powers of the liberal state. This would allow for the multi-stakeholder bureau to be made accountable for the misuse of its power with more immediacy than through its ouster by the next nominating committee.

A better example of this is seen in ICANN. ICANN’s bylaws make provision for the internal review (“reconsideration”) of a decision of its Board by “any person or entity materially affected” on the grounds that the decision was made in contravention of policy or in disregard of material information (without fault of the complainant). It also provides for the independent review of any decisions of the Board that are alleged to have been made unconstitutionally.[32]

The grounds of review specified in the bylaws have been criticised as being quite limited in comparison to those available for the challenge of executive decisions under domestic administrative law,[33] such as denial of natural justice and impropriety of purpose.[34] Further reducing the grounds of challenge available at the suit of its constituents, ICANN amended its bylaws in 1999 to ensure that its at large members could not bring a derivative action against the company under Californian corporations law.[35]

Moreover, of the applications for review that have been brought as of 2008, only one in seven requests for internal reconsideration has been determined in the complainant’s favour,[36] and none of the pending requests for independent review have yet been heard. In fact, an Independent Review Panel (IRP) to hear such requests was not established until 2004, despite having been specified in ICANN’s bylaws since its establishment,[37] creating the impression of a Board resistant to the imposition of top–down accountability.

The principal lesson for the IGF to be drawn from ICANN’s processes of review, whilst not particularly novel, is clear: that accountability is best served by an adequate separation of powers between the IGF’s formal decision-making organ and the body that reviews its decisions. Whilst it was suggested above in considering the structure of the bureau that it could form an appeals subcommittee from its own members,[38] this alone would not satisfy that criterion of independence.

A better model is provided by the CS-IGC, whose Appeals Team is selected by a randomly-elected Nominations Committee. Since such a committee has already been proposed for the IGF to appoint the multi-stakeholder bureau, it would be straightforward for it to appoint an appeals committee for the IGF simultaneously. This is also consonant with the findings of a 2002 report on ICANN, which recommended that its reconsideration committee should not be composed of members of the current Board, though could include former members.[39]

The appeals committee would not have an extensive role. After all, since the IGF is a consensual governance network, the ultimate sanction for the abuse of power would simply be the withdrawal of stakeholders from that network. Thus the power of the appeals committee, like that of any constituent body of the IGF, would be to make recommendations only, and then strictly only on procedural matters involving the disregard of the multi-stakeholder, democratic processes that underlie the IGF’s legitimacy; for example, that a decision of the bureau had been made in the absence of any evidence that consensus had been reached upon it by the plenary body.[40]

The addition of such an appeals committee to the already proposed structures of nominating committee, bureau, plenary body and dynamic coalitions would complete the institutional framework required to constitute the IGF as a democratically accountable governance network both in bottom–up and top–down terms.

There is, however also a third and final level of accountability, which has been described as peer-to-peer, and which is created by situating the IGF in a network of cooperative (or competitive) governance institutions.[41] Just as it was explained that part of the IGF’s mandate is to hold other bodies accountable for their adherence to the WSIS process criteria,[42] so too the IGF will, over the long term, be held accountable for its own effectiveness as a multi-stakeholder governance network by other actors in the Internet governance regime.

Little more need be said here of this final level of accountability, since the IGF has little direct control over it. However it has been stressed, particularly in Chapter 4,[43] that by reason of its inherently consensual nature, the power of a governance network is conditioned upon its ability to serve its stakeholders’ ends. If they can achieve the same ends less expensively through some other mechanism of governance (or through another governance network), then there is nothing to prevent them from doing so.

In that sense, the ultimate accountability for the IGF is provided through the pressure of regulatory competition from other institutions in the market for governance solutions. This competition gives it cause to hold as closely as possible to multi-stakeholder democratic principles in order to provide its stakeholders with ever greater reason to commit themselves to the network, thereby consolidating its social capital and fortifying its authority within the regime.

Notes

[1]

See Section 5.2.4.1.

[2]

United Nations Office of the Secretary-General, Secretary-General Establishes Advisory Group to Assist Him in Convening Internet Governance Forum (2006)

[3]

IGF Secretariat, Advisory Group Meeting Summary Report (2007)

[4]

IGF Secretariat, Advisory Group Discussion 6 December 2007 to 15 January 2008 (2008)

[5]

IGF Secretariat, Advisory Group Discussion 30 January to 3 February 2008 (2008)

[6]

See http://blog.icann.org/.

[7]

Bloem, Renate, Multi-Stakeholderism and Civil Society (2005), 101–102

[8]

Skelcher, Chris, Jurisdictional Integrity, Polycentrism, and the Design of Democratic Governance (2005), 105—though this is, deliberately, not true of the consociational multi-stakeholder bureau proposed here.

[9]

IGF Secretariat, Multistakeholder Advisory Group Meeting Summary Report (2008), 2

[10]

See http://www.chathamhouse.org.uk/about/chathamhouserule/.

[11]

See Section 6.3.2.3.

[12]

For example, in open consultation with all stakeholders, the bureau may agree to procedures (which could be enshrined in standing rules) by which private sessions may be held during the second phase on sensitive issues, or those issues discussed on a private mailing list, provided that the Chatham House Rule is applied.

It may also agree in like manner to a standing rule providing that the positions taken by governmental members are not those of the governments that appointed them, unless or until officially cleared. Alternatively, it could agree that only senior diplomats, authorised to make statements of policy in real time, should be eligible for appointment as governmental representatives; compare ICANN Governmental Advisory Committee, GAC Operating Principles (2005), Principle 14.

[13]

WSIS, Tunis Agenda for the Information Society (2005), para 72(i)

[14]

See Section 4.3.1.4.

[15]

See Section 4.3.3.

[16]

See Section 6.3.2.

[17]

For example IGF Secretariat, The Substantive Agenda of the First Meeting of the Internet Governance Forum (2006).

[18]

See Section 6.4.2.2.

[19]

WSIS, Tunis Agenda for the Information Society (2005), paras 75 and 76

[20]

But for the future, any multi-stakeholder arrangements that may yet be made for enhanced cooperation in Internet public policy making will be a likely candidate: see Section 5.1.4.1.

[21]

See Section 5.4.4.2.

[22]

A number of other ccTLD regulators and registries follow a similar model; for example Nominet appoints a multi-stakeholder Policy Advisory Board (PAB) to advise it on policy matters.

[23]

auDA, Constitution (2006), clause 3.1(d)

[24]

auDA, Constitution (2006), clause 24.8

[25]

Selby, John, Submission to Review of the Structure and Operation of the .au Internet Domain Name (2006), 16

[26]

Domain Industry Association, Domain Industry Submission to DCITA au Namespace Review (2006), 5

[27]

Selby, John, Submission to Review of the Structure and Operation of the .au Internet Domain Name (2006), 16

[28]

Davies, Kim, Contribution to the DCITA .au Review (2006), 6

[29]

See Section 6.4.2.2.

[30]

Rundle, Mary, Beyond Internet Governance: The Emerging International Framework for Governing the Networked World (2005), 18

[31]

See Section 4.3.2.3.

[32]

ICANN, Bylaws (2006), article IV, sections 2 and 3

[33]

Weinberg, Jonathan, ICANN and the Problem of Legitimacy (2000), 233

[34]

FAI Insurances Ltd v Winneke (1982) 151 CLR 342; The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170

[35]

Froomkin, A M, ICANN and Individuals (1999)

[36]

See http://www.icann.org/committees/reconsideration/. Of forty-two requests listed here dated between June 1999 and May 2006, six were decided for the complainant.

[37]

Froomkin, A M, Independent Review Panel Appointed After Years of Delay (2004)

[38]

See Section 6.3.2.3.

[39]

Centre for Global Studies, Enhancing Legitimacy in the Internet Corporation for Assigned Names and Numbers (1992), 21

[40]

Not coincidentally, this is analogous to one of the grounds upon which the actions of a domestic administrative agency may be challenged by common law judicial review, as codified in Australia by the Administrative Decisions (Judicial Review) Act 1977 (Cth), section 5.

[41]

Mueller, Milton & Klein, Hans, What to Do About ICANN: A Proposal for Structural Reform (2005), 3

[42]

See Section 6.2.2.3.

[43]

See Section 4.2.5, Section 4.4.4.3 and Section 4.5.