ABA Annual Meeting 2013

Challenges to Multi-stakholederism in

International Internet Governance and the Work of the

Internet Governance Task Force

August 9, 2013San Francisco David Satola

dsatola@worldbank.org

Outline

Two Strands:

– Multi-stakeholderism

• Why it is fundamental to International Internet Governance

• Recent challenges to multi-stakeholderism

– Activities of the Internet Governance Task Force

Internet Governance

• Characterized by “multi-stakeholderism”– Internet Governance Forum

• Debate on Internet Governance agenda has changed, moving up and to the center of the international policy– Shift away from being largely technical – Shift away from focus on ICANN

• “Legacy” tensions about governmental “control” remain– IG issues are now better understood, emotional temperature has

dropped– “Multi-stakeholderism” now being challenged in other fora – Public Policy and International law focus– Debate now includes military, national security and business leaders

Multi-stakeholderism

Westphalia - 1648

Evolution of Multi-stakeholderismIn Internet Governance

29. …The international management of the Internet should be multilateral, transparent and democratic, with the full involvement of governments, the private sector, civil society and international organizations…

35. We reaffirm that the management of the Internet encompasses both technical and public policy issues and should involve all stakeholders and relevant intergovernmental and international organizations. In this respect it is recognized that:

a. Policy authority for Internet-related public policy issues is the sovereign right of States. They have rights and responsibilities for international Internet-related public policy issues.

b. The private sector has had, and should continue to have, an important role in the development of the Internet, both in the technical and economic fields.

c. Civil society has also played an important role on Internet matters, especially at community level, and should continue to play such a role.

d. Intergovernmental organizations have had, and should continue to have, a facilitating role in the coordination of Internet-related public policy issues.

e. International organizations have also had and should continue to have an important role in the development of Internet-related technical standards and relevant policies.

What does it look like

No government All government Degree of government involvement

International

Regional

National

Company/Local

Individual

Internet standards

E-governmentTelecom regulation

Domain names

Trade policy

Cyber-crime

Development aid

Spam On-line privacy

Cyber-security

WTOIETF, W3C

ICANNCOE

Peering

User Decisions onPublishing/ Accessing

CERTs

MinistriesParliaments

Spectrum policy ITU

Source: CDT @ IGF Athens

Why is Multi-stakeholderism important in International Internet Governance

Sovereignty of States vs. Non-State Actors

Parallel rise of Nation States and Exercise of HR against States

But Internet is characterized by governance by non-state actors

Ironically (a) (certain) States are attacking on-line rights and

(b) Non-state actors are effectively charged with important roles in preserving rights along side states that continue to have legitimate functions in preserving those rights (prosecuting violations; maintenance of independent judiciary; promulgating laws, etc)

Emergence of “Soft Law”

Managing tensions between “rights” and “security”

Human Rights and the “Crisis” of Internet Governance

3rd Largest by Population

UN HR Council June 2012

UN Action in Support of Human Rights on the Internet

UN Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue May 2011

“States are increasingly censoring information online, namely through: • arbitrary blocking or filtering of content; • criminalization of legitimate expression; • imposition of intermediary liability; • disconnecting users from Internet access... and • inadequate protection of the right to privacy and data protection.”

Approves resolution preserving HR on the Internet - affirmed that people have the same rights online that they have offline, in particular freedom of expression

UN Report of the Special Rapporteur, April 2013

Revise national laws regarding surveillance of communications and align them with international protections of human rights.

US DoS - Internet Freedom is a human right …Freedom On-Line Conference

http://bitshare.cm/post/13979903172/sec-of-state-hillary-clinton-internet-freedom-is-a White House: “International Strategy for Cyberspace”:

“Upholding Fundamental Freedoms: States must respect fundamental freedoms of expression and association, online as well as off.”

“Multi-stakeholder Governance: Internet governance efforts must not be limited to governments, but should include all appropriate stakeholders.”

http://www.whitehouse.gov/sites/default/files/rss_viewer/international_strategy_for_cyberspace.pdf.

Net Neutrality

"Users should have the greatest possible access to Internet-based content, applications and services of their choice, whether or not they are offered free of charge, using suitable devices of their choice. Traffic management measures which have an impact on the enjoyment of fundamental rights and freedoms, in particular the right to freedom of expression and to impart and receive information regardless of frontiers, as well as the right to respect for private life, must meet the requirements of international law on the protection of freedom of expression and access to information, and the right to respect for private life. “

Council of Europe 2011

Declaration of Internet Governance Principles

Threats to Multi-stakeholderism

New CyberWar Convention,

WCIT

Stuxnet , Snowden, XKeyscore

Multi-Stakeholderi

sm

Do the moving parts suggest a treaty to govern the Internet?

China, Russia, Tajikistan and Uzbekistan UN GA resolution - “International Code of Conduct for Information Security” 2011

“…cooperate in combating criminal and terrorist activities that use information and communications technologies, including networks and in curbing the dissemination of information that incites terrorism, secessionism or extremism or that undermines other countries’ political, economic and social stability…”

“To promote the establishment of a multilateral, transparent and democratic international Internet management system to ensure an equitable distribution of resources , facilitate access for all and ensure a stable and secure functioning of the Internet;”

WCIT-12Dubai 2012

Westphalia1648

RESOLUTION PLEN/3 (DUBAI, 2012)To foster an enabling environment for the greater growth of the Internet

The World Conference on International Telecommunications (Dubai, 2012),recognizing

…d) the valuable contribution of all stakeholder groups in their respective roles, as recognized in § 35 of the Tunis Agenda for the Information Society, to the evolution, functioning and development of the Internet;

e) that, as stated in the WSIS outcomes, all governments should have an equal role and responsibility for international Internet governance and for ensuring the stability, security and continuity of the existing Internet and its future development and of the future internet, and that the need for development of public policy by governments in consultation with all stakeholders is also recognized;…

resolves to invite Member States1 to elaborate on their respective positions on international Internet-related technical,development and public-policy issues within the mandate of ITU at various ITU forums including, inter alia, the World Telecommunication/ICT Policy Forum, the Broadband Commission for Digital Development and ITU study groups;…

instructs the Secretary-General1 to continue to take the necessary steps for ITU to play an active and constructive rolein the development of broadband and the multistakeholder model of the Internet as expressed in § 35 of the Tunis Agenda;…

Relevance? (in the face of non-State Actors and other soft law considerations)

As a Treaty?

Binding?

Revert to old ITRs?

Revert to Customary International Law?

A new WTO-type Doha round?

Impact of WCIT 12 and new ITRsPublic International Law Dimension

The Internet Governance Task Forceof the

Cyberspace Law Committeeof the Section of Business Law

August 7, 2010 25

Mission StatementIn response to … interest among Cyberspace Law Committee members on the subject of developments

at the international level on legal and related policy issues of Internet Governance, and in order to provide a more focused, structured and institutionally relevant approach to these issues, the Cyberspace Law Committee has formed a Task Force on Internet Governance.

The mission of the Task Force is (1) to raise awareness within the Committee, the Section and the ABA on legal and related policy aspects of Internet Governance principally at the international level and

(2) to promote understanding of developments regarding Internet Governance. The Task Force will address Internet Governance issues that affect legal practitioners and those that relate to the Rule of Law generally.

The Task Force will perform this mission primarily by monitoring activities of the international community regarding legal developments of Internet Governance, and by participating in such activities, as appropriate. The Task Force will also act as a liaison with the international community, with the Committee and the Section (as well as other interested sections of the ABA) and with relevant International Organizations (such as ICANN, ITU, the Secretariat of the IGF and others) dealing with these issues. The Task Force will report back to the Committee and the Section on progress in meeting this mission and about its specific activities.

http://www.abanet.org/dch/committee.cfm?com=CL320061

Highlights IGTF Activities

Year Event Title2013 ABA Annual, San Francisco Program: Internet Governance: What It Is, Where It’s Going and What It Means For Your Clients2012 ABA Annual, Chicago;

ITU WCITBlanket Authority Letter to USG, “Potentially Negative Impacts on Human Rights and the Internet Posed by WCIT-12” in support of preserving Multi-stakeholder Governance of the Internet at WCIT Negotiations

2012 Freedom On-line Conference, Nairobi

Legal and Regulatory Aspects of Internet governance and Human Rights

2011 William Mitchell Law Review Article: Towards a Deconstructed, Modular Approach to Enhancing International Cooperation and Collaboration in Cyber-security Legal Frameworks: Reflections on the Proceedings of the Workshop on Cyber-Security Legal Issues at the 2010 Internet Governance Forum

2011 BLT Article: US Business Interests under Attack in Cyberspace: Is International Regulation the Right Response?

2011 IGF, Nairobi Scenarios Summit: Internet Governance: Global Developments Systematically Considered2011 Council of Europe Open Consultation: Internet Freedoms – From Principles to Global Treaty Law?2010 IGF, Vilnius Workshop: International Cooperation on Cyber-security2009 IGF, Sharm el Sheikh Workshop: Corporate Governance as Internet Governance2009 ABA Annual, Chicago HoD Resolution 106 in favor of extending mandate of IGF2008 ABA Annual, NYC Program: The Internet - How It Is Governed Today and How it May Be Governed Tomorrow: A VIP

Panel Discusses the Internet Governance Forum of the United Nations and the Global Debate About the Control and Future of the Internet

2007 IGF, Rio de Janiero Workshop: Privacy Workshop: Critical Internet Resources

2006 IGF, Athens Workshop: Legal Aspects of Internet Governance

• Multi-stakeholderism enshrines the Role of Non-State Actors in International Internet Governance

• Some states want to control communications on the Net by undermining MS/NSA and replacing it with supremacy of the State

• WCIT was latest attempt to do so, but with 1/3 of countries not adhering its import as an international instrument is unclear

• What does it all mean for US practicioners?

Conclusions