Transparency and Diversity in the 2017 MAG Renewal

By Puneeth Nagaraj

Two days before the ongoing MAG meeting, the 2017 MAG renewal was announced. The CSCG protested the lack of civil society representatives among the new MAG members. This brought back focus on the need for MAG reform. Our report on multistakeholderism had identified the lack of transparency and geographic diversity in MAG selections. These issues remain relevant as another set of MAG meetings kick off in Geneva.

The Multistakeholder Advisory Group (MAG) of the Internet Governance Forum (IGF) was renewed for 2017 on Monday. The renewal has attracted controversy as no civil society members were added to this year’s MAG. The announcement has brought into focus a persistent criticism on the lack of transparency in the MAG nomination process. The lack of transparency and geographic diversity in the MAG was discussed in our report on multistakeholderism. Some of its findings are relevant to the 2017 MAG renewal.

Created on the recommendation of the Working Group on Internet Governance (WGIG), the MAG is responsible for organising the annual IGF. The MAG is not a decision-making body by design. But  Jeremy Malcolm  (pp. 420-422) points out  that the MAG effectively chooses issues that are debated on a global stage in the course of organising the IGF. In this respect, he argues that the MAG plays an important agenda setting role in internet governance.

MAG Nomination Process and Transparency

The make-up of the MAG is similar to the WGIG in that consists of representatives of all stakeholder groups (government, private sector, civil society and technical community). The selection of MAG members is made by the United Nations Department of Economic and Social Affairs (UN DESA) under the authority of the UN Secretary General. Nominations to the UN DESA are made through focal points from different stakeholder groups, but applicants can also apply to the UN DESA directly.

As noted in our report (pp. 70-72), once nominations are sent to the UN DESA, there is no clarity on how members are selected to the MAG. The only available information on DESA’s selection criteria are the five criteria listed on the IGF website. These criteria include achieving a geographic and gender balance and that representatives should have strong linkages to their stakeholder groups.

The controversy in this year’s MAG renewal arose out of the lack of new civil society representation on the MAG. The Civil Society Coordination Group (CSCG), which is the focal point for civil society nominations wrote to the IGF secretariat asking it to reconsider its decision. They pointed out that no civil society members were added to the MAG this year despite two civil society members retiring from the MAG (members are selected for 3 year terms and a third of the MAG retires each year). The letter also called on the IGF secretariat to select an additional civil society member to the MAG.

This is not the first time that MAG nominations have been controversial. In 2016, the CSCG wrote to the IGF secretariat asking for greater transparency and inclusiveness in selections to the MAG. Similarly, as discussed in our report (p. 73), an Indian civil society member nominated by the CSCG was not selected to the MAG in 2014. In the above cases, the CSCG had contacted IGF secretariat asking for greater clarity on how selections were made.

Geographic Diversity

One of the findings of our report with respect to the MAG was on the geographic diversity of the group. As mentioned above, geographic diversity is one of the stated criteria based on which the UN DESA selects members to the MAG. Our report found that on average, 8-10% of MAG members were from the United States (based on their affiliation mentioned on the IGF website). As shown in the chart below, this was the highest percentage representation from any country between 2011 and 2015.

Membership by country as a percentage of total MAG Membership (2011-15)

Source: Multistakeholderism in Action

This trend has continued in the 2017 MAG renewal with 4 members or 7% of the MAG being from the United States. No other country has more than 2 members in the current MAG. The FAQ section on MAG renewals acknowledges this disparity. It stated that the MAG currently has an excess of members from Western Europe and Others Group. It also states that a new selection process will attempt to make the MAG more regionally balanced. It remains to be seen if this imbalance will be addressed in the next MAG renewal cycle.

The MAG nomination process raises questions on the transparency of the process and the diversity within the MAG. However, there is very little publicly available information or communication from the UN DESA beyond the criteria listed on the IGF website. The 2017 announcement was made one day before the IGF Open Consultations and MAG meeting were to begin in Geneva (1^st March). A CSCG representative who circulated the letter believed that the issue of non-selection of a civil society member might be taken up at the meeting.

Puneeth Nagaraj is a Project Managers at the Centre for Communication Governance at National Law University Delhi

Civil Society and CCWG-Accountability: a report from IGF 2016

By Aarti Bhavana

The 11^th Internet Governance Forum (IGF) was held earlier this month in Guadalajara, Mexico. Established as a result of the Tunis Agenda, the IGF provides a space for discussing issues relating to the internet, where stakeholders can engage on an equal footing. Though it is not a decision-making forum, the IGF provides stakeholders the opportunity to share their work with others working in the same field.

CCG and the Non-Commercial Stakeholders Group (NCSG) organised a workshop that brought together active civil society participants from the IANA Transition to reflect on the process. The discussion was mainly centered around the Cross-Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability), which has been summarised in this post. With a long line-up of panelists, this workshop touched upon issues that were important to civil society, as well as successes and failures that could help develop strategies for future engagement. While the transcript for this workshop is not available yet, the video recording can be viewed here.

It has been a little over two months since the IANA Transition was successfully completed. The CCWG-Accountability, formed to make recommendations on enhancing ICANN’s accountability, completed the first phase of its work before this. Known as Work Stream 1 (WS1), this phase dealt with all the topics that needed to be completed before transition could occur. Now, CCWG-Accountability has shifted its focus to Work Stream 2 (WS2) and is busy with 9 subgroups working on different issues that were left to be discussed after the transition. However, the IANA Transition was a historic event that brought with it a treasure trove of experiences, invaluable as a guide for future work. Drawing lessons from this experience would require taking a step back and looking at the process as a whole. Luckily, the IGF provides just such a space.

Key issues for civil society

When the IANA Transition was announced in March 2014, civil society was among the voices that demanded increased accountability and transparency of ICANN. As Robin Gross summarised, routine violations with bylaws, top-down policies, mission creep, staff interference and opacity were just some of the reasons for this push. The call for enhancing ICANN’s accountability received support across the board, and was something with which the US government also agreed. The concerns raised had more to do more with the accountability of policy-making processes than of the IANA Functions, Milton Mueller explained. Accordingly, the CCWG-Accountability was created where civil society actors from NCSG and (At-Large Advisory Committee (ALAC) were very active. As Gross stated, it was critical to get strong community powers in order to hold the Board of Directors accountable (such as right to recall board members, oversight over the budget, approval for bylaw changes, etc.). Accordingly, there was a constant push from civil society for stronger accountability measures, be it for the structure of the Empowered Community, the Independent Review Process (IRP), role of governments, human rights, staff and community accountability, or transparency. Many of these issues are still being discussed in WS2. However, as pointed out by Alan Greenberg, it must be remembered that civil society being a large collective of stakeholders with diverse interests, does not have a single agreed position on these issues.

Failures and successes

The various accountability issues are nuanced and complex, and require external experts to join the process. For example, transparency and human rights. However, joining these discussions pose their own set of challenges. As Matthew Shears summarised, many barriers to participation often seen at ICANN were also reflected in the CCWG-Accountability process as well, such as the high time commitment, language of acronyms, and the quick learning curve. Since this process required an understanding of how ICANN functions as a whole, these challenges became all the more significant. As a panelist, I noted that discussions often tended to be centralised around the same few people, which made it difficult for people to join the conversation. Additionally, Jan-Aart Scholte observed that the civil society participation was mainly from North America and Europe. He continued to discuss another significant challenge- the lack of complete openness. While the IANA transition and the CCWG-Accountability are lauded for proving that multistakeholderism can work, we must not ignore the politics involved. He highlighted that crucial discussions and deals took place behind closed doors, and were later presented at the publicly recorded calls, meetings and mailing lists. He also pointed out that civil society was on the sidelines when it came to these private discussions, which reduced its ability to influence the outcome, unlike the other stakeholders involved.

One of the biggest takeaways from this process was observing the bridging effect of a common goal. As Shears noted, this process saw diverse stakeholders talk through options when there were conflicting opinions, perspectives and interests. However, with the completion of the transition, the common goal has gone away and he observed that participants are now falling back into their stakeholder group “silos”.

Strategies for the future

While it may be a bit early to take a call on successes and failures, WS2 is still ongoing. It may be useful to try to replicate what went well, and learn from the challenges seen in WS1. Greenberg pointed out the utility of having regular informal discussions with members from other stakeholder groups in order to reach a compromise, something he recommended should be continued in WS2. The nature of the work being done by CCWG-Accountability requires finding a way to continue to work together, beyond just “looking for the lowest common denominator”, as Klaus Stoll suggested. Further, the range of issues being discussed in WS2 is diverse, and continues to require experts from outside the ICANN community to get involved. The strategy of clearly dividing the topics into separate issues was appreciated by Marilia Maciel, as it allows for easy identification of the different areas. She also pointed out that even though most of the discussion has been documented, it would be impossible to go through the tens of thousands of emails exchanged and hundreds of hours of calls. Drawing parallels with the effort required to understand the NetMundial Initiative retrospectively, she emphasised the need for documenting this process while it is still recent. CCG has attempted to do that over the past year, but the sheer volume of the discussions require more active participants to pen down their experiences and analysis to allow for a closer study later.

 

Implementing Enhanced Cooperation

By Puneeth Nagaraj

One of the important outcomes of the WSIS+10 review was the establishment of the CSTD (Commission on Science and Technology for Development) Working Group on Enhanced Cooperation (WGEC). Subsequently, the establishment of the WGEC was announced in February with Peter Major as its chair and the nomination process to the WGEC will conclude shortly. The WGEC will be constituted by the end of the month. This affords us an opportunity to reflect on the meaning on Enhanced Cooperation (EC) and how it can be implemented.

The notion of Enhanced Cooperation can be found in paragraphs 69-71 of the Tunis Agenda. However, the term itself has been used extensively within the European Union since the Treaty of Amsterdam in 1997. In the EU, the term refers to a certain number of EU Member States (usually 9) that are allowed to establish advanced integration or cooperation without the involvement of other members. In the context of the WSIS, debate has raged on for the last decade over the exact meaning of the term. The reference in the Tunis Agenda to EC leaves room for a lot of ambiguity. During the WSIS+10 negotiations, many delegations debated over whether EC is already taking place or if structures need to be put in place to implement it. Below are three ideas for the implementation of Enhanced Cooperation.

Stakeholder Participation

First is clarifying the roles of different stakeholder groups, in various Internet Governance fora. Engaging with the WSIS+10 Review has shown us that despite the emerging consensus on multistakeholder models of governance, there can be significant barriers to the participation of stakeholder representatives. The Review, unlike the Geneva and Tunis Summits was not an open process, driven primarily by Member States. Hence, the space afforded to other stakeholders was limited. This is against the ideal of “full participation of all stakeholders” as per the Tunis Agenda (para 31). To this end, establishing clear terms of civil society engagement in the various Internet Governance institutions should be an important function of the WGEC.

Funding Mechanisms

Second, both the Tunis Agenda and the WSIS+10 outcome document call for innovative funding mechanisms to facilitate ICT4D programmes. With the failure of the Digital Solidarity Fund, most ICT related development programmes are predominantly funded by Official Development Assistance (ODA). An oft ignored part of the WISS process is the governance of funding mechanisms. An allied issue is the delineation of the various UN bodies involved in the SDG process as they relate to ICTs. The WSIS+10 Outcome document stressed the overlaps with the SDG process but did not describe how this synergy was to be achieved. In the absence of an explicit ICT related goal in the SDG process, identifying the roles of organizations like the ITU, UNESCO, UNCTAD among others in fulfilling this dual mandate will be an important aspect of Enhanced Cooperation. The ITU has taken an important first step in identifying the overlaps between the WSIS Action lines and the SDGs. It is up to the WGEC to expand upon this effort and create synergy between the two processes.

Human Rights

Third, the crux of Enhanced Cooperation is in developing global public policy principles (Tunis Agenda para 70). One of the positive outcomes of the WSIS+10 review was the incorporation of a separate section on human rights. This recognition will be meaningless without embedding human rights into all global IG institutions. ICANN has recently, very encouragingly approved its human rights mandate. As the IGF also undergoes a transformation through the renewed Working Group on Improvements to the Internet Governance Forum, this is an important moment to establish public policy principles as they relate to human rights. The WGEC is the best place to create principles or governance frameworks to support human rights and other public interest issues. The UN HRC and Special Rapporteurs on Free Speech and Privacy have made important strides in this area. The WGEC should attempt to synthesize these efforts to produce adaptable standards for various IG institutions.

Puneeth Nagaraj is a Project Managers at the Centre for Communication Governance at National Law University Delhi

BRICS and Internet Governance: India’s Chance to Lead the Way

By Gangesh Varma

The last quarter of 2015 alone witnessed three key events that displayed the diversity of views on internet governance. Namely, the 10^th Internet Governance Forum (IGF), the United Nations WSIS+10 High Level Meeting, and the 2^nd World Internet Conference (WIC) in Wuzhen, China. Each of these events captured various models of internet governance both as part of their discussions and in their format as well.  In this post I highlight some of these rifts in the internet governance space and suggest that 2016 BRICS Summit, might be a great venue to build bridges for better dialogue. India is set to chair the BRICS Summit from February 2016 and has an opportunity to lead the way.

The number of venues where internet governance discussions take place continues to grow. This is not surprising considering that internet governance is a very broad term and has a wide ambit that is rather pervasive. It is indeed a reflection of diverse perceptions and priorities that countries and stakeholders have with regard to internet governance. Having multiple fora for discussing these issues is not a bad necessarily a bad thing. In addition to providing more alternatives I believe it accommodates diverse perspectives and provides avenues for greater representation.

Interaction between these fora produces interesting results. For example, the 10^th IGF also facilitated a round of consultations on the WSIS+10 Review, and the inputs received was transmitted to the negotiations before the High Level Meeting. This synergy is natural because the IGF was essentially born out the second phase WSIS process in 2005, and the consultations for the WSIS+10 Review also followed a multistakeholder model. An example showcasing the opposite of such synergy can be found in furore surrounding the interactions at the 2^nd WIC. Fadi Chehade, CEO of ICANN at the 2^nd WIC caused quite a stir with his statements, and decision to join and co-chair the High-Level Advisory Committee. I will not be analysing the merits and demerits of such decision, or commenting on the larger Chinese strategy at play. I would  like to highlight the reason for such friction is simply because of the existence of multiple models of governance.

The various models of governance are a result of the divergent views of internet governance. The Tunis Agenda is a great example that was a result of a compromise between the multistakeholder and multilateral elements. Ten years later the negotiations of WSIS+10 Outcome document revived the same debate. Eventually the outcome document was arrived at by including both ‘multistakeholder’ and ‘multilateral’ in its text. Kleinwächter takes a ‘layered approach’ in analysing this debate, and shows how each event is an example of a different model of governance. The IGF is a multistakeholder conference, while the WSIS+10 was multilateral and the 2^nd WIC was unilateral event under Chinese leadership. It is evident that in reality no model exists in isolation, and cannot afford to do so due to the complexity and scale of the internet ecosystem. However, competing notions of fundamental concepts prevent multiple models from co-existing without friction. Concepts of sovereignty and jurisdiction when applied to the internet and cyberspace have widely differing interpretations. Even multistakeholderism is interpreted and operationalised differently in various institutions and processes.

The concept of ‘sovereignty’ can be taken as an example. At the 2^nd World Internet Conference, the Chinese President Xi Jinping reiterated the application of sovereignty to online spaces. On an internet governance spectrum, President Xi Jinping’s iteration of ‘cyber-sovereignty’ would be on one end while John Perry Barlow’s famous Declaration of the Independence of Cyberspace from 20 years ago would be on the other end. Barlow’s version of cyberspace is long gone, and sovereignty on the internet has many manifestations such as ‘data sovereignty’ that has gained importance in the Post-Snowden Era. The evolving uses of the internet only adds to the complexity created by these competing notions of sovereignty and its application to the online spaces resulting in differing interpretations of ‘cyber-sovereignty’.

In this context, I believe building a ‘BRICS Bridge for Dialogue’ would be helpful. BRICS might seem like the least favourable place to discuss internet governance given there are divergent views within the coalition itself. Russia and China support greater weightage to multilateral methods. While India, Brazil and South Africa (IBSA) can be considered supporters of multistakeholder models although they had earlier in 2011 supported a UN led Committee for Internet Related Policy (CIRP) which was predominantly a multilateral model. India’s position on multistakeholderism is evidenced not only in the statement of the Information and Communications Minister at ICANN 53 but also in the recently concluded WSIS+10 negotiations as well.

BRICS has already put in place working groups such as the Working Group on ICT Cooperation, and the BRICS Working Group on Security in the Use of ICTs. The Ufa Declaration pledges support for greater cooperation in these areas and places heavy reliance on the UN and multilateral mechanisms. However it also acknowledges the ideas of “equal footing” and “the need to involve relevant stakeholders in their respective roles and responsibilities”. This intra-BRICS cooperation provides a foundation of shared values to build a stronger dialogue on internet governance issues. Given the divergence of views on internet governance models among the BRICS countries, it is not easy to develop a crystallised BRICS position. However, initiating the dialogue among a smaller group countries with common interests can probably yield better results than stand-offs between hard-line positions on other international fora. India will be hosting the BRICS Summit in 2016, and will be Chair for a period of 11 months starting in February 2016. India has the opportunity to initiate and steer this dialogue that has significant strategic benefits not just for the BRICS countries but can contribute to the development of global internet governance regimes. 

WSIS+10 Review Process Update: Dissecting the Draft Outcome Document

The 10 year Review of the World Summit on Information Society(WSIS) +10 Review will culminate next week in New York. A High Level Meeting will conclude the review process and adopt an outcome document which is currently in its final stages of negotiations.

The co-facilitators recently conducted a briefing at the United Nations Headquarters in New York where they gave an update on the negotiations and discussed the Draft Outcome Document of the General Assembly Overall Review of the Implementation of the WSIS Outcomes released on 7^th December 2015. This new draft released over a month after the previous draft has changed as expected after receiving comments and inputs from multiple stakeholders including those present at the IGF 2015.

This latest draft text represents the final stages of negotiations and a cursory look at the draft shows that some parts are far from agreed or consensus text. Ambassador Jānis Mažeiks said that the draft contains broadly three categories of text. First, text that has more or less been agreed upon and is uncontroversial is “[Suggested for closure]” indicating that ideally nations may not consider reopening negotiations on the text. The second category of bracketed text holds the rather controversial or as Ambassador Mažeiks stated, ‘sticky issues’ where new text has been added or no changes have been due to divergence of comments received. These will undergo further discussion and negotiations in the coming days. The third category of text is one which is neither suggested for closure nor bracketed. This part of the text indicates either there has been a significant new addition in the text or key suggestions through comments have not been reflected. The Ambassador remarked that the draft is ‘not quite a piece of literature’ but best efforts will be made to achieve an outcome document that is balanced and acceptable to all. While the negotiations are underway, let us briefly examine the new changes reflected in this latest draft section-by-section:

Preamble

Linkages with Sustainable Development Goals (SDGs) have been made stronger. Paragraphs 4 and 5 in the preamble section makes a direct reference reaffirming the SDGs and the Addis Ababa Action Agenda. This addition gives the linkages between WSIS and the SDGs much more prominence as desired by many stakeholders.

Another welcome change reflected throughout the document is the change of the phrase ‘the digital divide’ in singular to ‘digital divides’ reflecting the plurality of the issue facing the information society.

Paragraph 11 of the preamble has a few new additions to the list of issues that require improvement such as access, cultural preservation, and investment. It also has new text with special emphasis on gender divide existing as part of digital divides. In general, the language in the preamble has been strengthened by bringing more specificity and precision.

ICT for Development

The section on ICT for Development too has some substantial additions. Most of which are ‘suggested for closure’ indicating that they aren’t really controversial inputs and reflects the comments from various stakeholders.

Paragraph 18 speaking of the digital economy now additionally recognizes “the critical importance of expanding the participation of all countries, particularly developing countries, in the digital economy.”

Disaster management and humanitarian response which in the previous draft was merely mentioned in the previous draft now receives greater emphasis with detailed text solely dedicated to this aspect in paragraph 20.

Within the ICT for Development Section, the section of Bridging the Digital Divide sees maximum changes and noteworthy new additions in the text.

The importance of acknowledging the existing inequalities in the conception of digital divides was one of the issues reflected in CCG’s comments to the earlier draft, and was reiterated during the WSIS+10 Review Consultation at the IGF this year. Reflecting this, paragraph 23 in the latest draft sees language on digital divides and its linkages to education levels and existing inequalities being brought to the fore when the issue is being conceptualised in this document. The text also lays emphasis on the exclusion of the poor from the benefits of ICTs. This paragraph with these key new additions has been suggested for closure contingent upon updated data and figures.

The conceptualization of digital divides in this draft has been more detailed that the previous and can been seen in the text of paragraph 24 and 28 which reiterate that ‘digital divides remain between developing and developed countries’ in addition to the divides in ‘digital uses and literacy.’

Radio frequency spectrum management is a completely new issue that finds a mention in paragraph 34 of the new draft document.  It states that spectrum should be managed in ‘public interest’ and in ‘accordance with principle of legality with full observance of national laws and regulations as well as relevant international agreements’. Radio frequency spectrum was not mentioned in the previous draft, and this notable addition has not been bracketed or suggested for closure.

Human Rights in the Information Society

This section of the draft document has been at the heart of all WSIS debates and discussions. The transformation in the previous versions of the draft text giving due importance to human rights was an indication of the receptive nature of the consultation process with various stakeholders.

The paragraphs human rights section have been shuffled a bit, but largely remain the same. The General Assembly Resolution 69/166 finds mention. The right to privacy has been emphasised in addition to recognition that that the same rights that people have offline must also be protected online.

The following paragraph 46 replaces the term ‘bloggers’ with ‘media workers’ while referring to concerns of journalists and civil society surrounding freedom of expression and plurality of information.

While it is heartening to see specific references to internationally binding human rights instruments such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), it is indeed disappointing that the entire document makes no mention of the International Covenant on Economic, Social and Cultural Rights (ICESCR).  It is interesting to note that paragraph 47 that mentions Article 19 of the ICCPR while discussing freedom of expression has been suggested for closure, the following paragraph 48 which mentions the UDHR and the ICCPR has been left open for discussion. Hopefully countries will make an effort to negotiate the inclusion of the ICESCR that embodies some of the most important issues relating to the growing information society such as health, education and labour rights.

There is only a remote reference to economic and social development made in the previous section on enabling environment under paragraph 33 that urges states to refrain from “any unilateral measure not in accordance with international law and the Charter of the United Nations that impedes the full achievement of economic and social development …”.

Building Confidence and Trust in the Use of ICTs

This section where cybersecurity is discussed under a rather euphemistic sub-heading has almost entirely bracketed text or text left open for discussion. Paragraph 51 which acknowledges the contributions of various stakeholders now refers to the “private sector, civil society, the technical community and academia” as compared to the sole reference to governments in the previous draft. The problem however remains that cybersecurity concerns are being couched in national security vocabulary in a rather adversarial form against human rights and fundamental freedoms.

Notably paragraph 53 (paragraph 47 in the previous draft) has undergone some substantial changes and is placed entirely in square brackets leaving it open for debate during the negotiations. The text here addresses the ambit of international law in the cyber security context. It recognizes the importance of the principles of international law, and the UN Charter. It goes on to specifically list principles enshrined in the charter such as  “sovereign equality; the settlement of international disputes by peaceful means in such a manner that international peace and security and justice are not endangered; refraining in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations; respect for human rights and fundamental freedoms; and non-intervention in the internal affairs of other States.” The text also welcomes the 2015 report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security.

It is also interesting to see a more detailed approach to cybercrime in this section. The prime issues of prosecution, and impact across multiple jurisdictions are featured in the text. The language makes specific reference to existing efforts and legal tools at both the national and the international level.

Another set of bracketed text in this section is concerning technical assistance and capacity building to address the challenges facing developing countries in combating cybercrime and terrorism.

The section is has been subject to extensive debate as there are diverging views on whether WSIS is the appropriate forum considering the multitude of initiatives mentioned in paragraph 51.

Internet Governance

Internet Governance continues to remain a difficult issue. The language in this draft has hardly seen significant change, and key parts remain in square brackets reflecting the diverging views. The reference to ‘multi-lateral’ remains and seems oblivious to the numerous comments and inputs made in this regard.

Two interesting additions have been made in this section. First, a reference to Regional Internet Registries (RIRs) which remains in square brackets and second the hosting of the NETMundial Global Multistakholder Meeting on the Future of Internet Governance (not the NETMundial Initiative) which is suggested for closure. In light of these two additions, the absence [or avoidance] of any mention of ICANN and the IANA Transition Process becomes apparent.

The paragraph on net neutrality- which was included in the last draft-  has been diluted. In its present form, paragraph 61 merely recognises the importance of ‘the ongoing dialogue on net neutrality and the open Internet in the context of the Information Society’ and removes any reference to its protection.

The renewal of the IGF comes as a relief in this section, however the weak conditionality attached to the renewal for 10 years may not provide a strong incentive to reform and address the concerns raised in the UN Commission on Science and Technology for Development (CSTD) Report on Improvement to the IGF.

 Enhanced Cooperation

The concept of Enhanced Cooperation has been subject to controversy since its inception. This draft of the text however retains the language of the Tunis Agenda and suggests for closure. However, the following paragraph 64 on re-establishing a working group has been significantly modified to include ‘modalities to ensure the full involvement of all relevant stakeholders, in order to provide a diversity of perspectives and expertise.’. The report of this group is proposed to be submitted to the 73^rd General Assembly, however this part of the text is in square brackets reiterating its contested nature.

Follow-up and Review

This section has mostly agreed text and is suggested for closure. Reflecting comments and inputs, regional reviews find mention in paragraph 67. The final paragraph 70 however remains open and creates more room for debate on whether the General Assembly should be the body that convenes the High Level Meeting in either 2020 or 2025.

The WSIS+10 Review process is now at its final stages. The on-going negotiations will result in the final draft that will be then be tabled for adoption at the High Level Meeting on 15 and 16 December, 2015. While the significant progress must be appreciated, there are some key concerns that remain. It can only be hoped that the countries negotiating the texts will iron out the creases.

Yes to multi-stakeholderism

By Chinmayi Arun and Sarvjeet Singh

The post originally appeared in The Hindu on 20th July 2015.

With the government’s decision to call for public comment and response, the recent consultations on net neutrality are a step in the right direction.

New Ideas: “A change in India’s stand signals potential openness to consultative policy-making.” In picture, activists staging a protest in favour of net neutrality in New Delhi.

India declared its support for multi-stakeholder governance of the Internet at the ICANN 53 meeting in Buenos Aires and at the first Preparatory Meeting for the U.N. General Assembly’s overall review of the implementation of the World Summit on Information Society outcomes earlier this month. This, in combination with the government’s efforts at consultative policy-making in the context of net neutrality, may signal the beginning of a more discursive approach to communication policy.

India’s statements at both meetings have drawn attention thanks to the country’s place in the decade-old furious debate still raging over global Internet governance. Countries such as the U.S. and Germany have advocated a ‘multi-stakeholder’ model that consults governments, industry, civil society and technical community while making decisions that affect the Internet. This is consistent with these countries’ domestic approach to communication policy, which includes independent regulators that conduct wide consultations and frame policy after accounting for the concerns of various stakeholders. India has opposed this point of view in the past, favouring the ‘multilateral model’ in which national governments make decisions through an equal vote, arguing that this is the most equitable model. This has been consistent with India’s domestic command-control communication policy, which has tended to confine citizen participation in governance to the casting of the vote.

The change in India’s stand globally signals potential openness to consultative policy-making. Since ‘multi-stakeholder’ governance is an ambiguous term , the government’s approach to domestic communication policy may be a good indicator of its intentions for the Internet. In this context, it is worth taking a close look at how the net neutrality policy is being made. A clear effort has been made at consultation and responsiveness. It is a promising start and may be the beginning of consultative decision-making that gives citizens more avenues to discuss the best way for them to access information.

Consultative approach

Before publishing the net neutrality report this month, the Department of Telecommunications conducted a series of consultations. Although these consultations were closed and only for invited parties, the committee reached out to a wide range of experts and stakeholders. Reading the report makes it apparent that many perspectives were invited and incorporated but that we need to work towards documenting public input better. It is necessary to find a way to reflect different concerns within a post-consultation report.

Consultative governance of Internet policy will mean significant changes both in the process followed and in our deep-seated attitudes towards governance. If the government has to develop the uncomfortable habit of being more immediately responsive and accountable for decisions, we the stakeholders also need to take responsibility for our own communication policy.

For consultations to work, we will need to provide well-researched inputs and a continued willingness to engage and see other points of view, which is a habit that will also take time to develop.

The net neutrality consultation was a promising debut in which the government took the time to listen and respond, and a range of citizens made the effort to contribute and engage.

This is not the first time that India has flirted with the idea of multi-stakeholder governance. At the IGF 2012, the then Minister of Communications and Information Technology, Kapil Sibal, spoke of the India’s support for the multi stakeholder model. Following this, the government set up an advisory group for the India Internet Governance forum, and frequently invites inputs including in the net neutrality consultation.

Governments and other stakeholders of the world disagree about what ‘multi-stakeholder’ governance means. This governance model has its roots in the phrase ‘enhanced co-operation’, a compromise text inserted in the Tunis Agenda after prolonged negotiation. The meaning of this term, and the role played by NGOs in making decisions about the Internet remains elusive after years of international debate. The failure of the Working Group on Enhanced Co-operation set up to publish a report on what the model means illustrates the sensitive international politics within which the issue is submerged. An actual shift in India’s position may change the balance of the politics and would be worth watching out for.

India’s willingness and efforts to support a consultative model globally is likely to depend on its experience with such a model locally. The net neutrality consultations and leveraging of the multi-stakeholder advisory group are, therefore, tangible domestic experiments.

Multi-stakeholder models can vary in form and can exclude key stakeholders. For example, the Cyber Regulatory Advisory Committee consists of governmental and industry representatives with just one member from the technical community. Its characterisation as ‘multi-stakeholder’ has value since the government has the option of nominating others to the committee. But until the actual composition is more representative of different viewpoints, it will remain an industry-government committee. Similarly, the government’s cyber-security initiatives have tended to be industry-government conversations. This is troubling since all these initiatives ought to include people who work to embed human rights within these systems.

Commendable steps

The recent net neutrality consultations are a step in the right direction. The department’s decision to call for public comment and response to the report is commendable, especially since the department is under no legal obligation to do this. If India is serious about consultative decision-making, it will be worthwhile to build the more ad hoc processes followed for the net neutrality report into a constantly-improving system. The TRAI has experience with inputs from public consultations, and we have a lot to learn from other democracies that do this on a regular basis.

India’s fears about multi-stakeholder governance have always had their roots in its concerns about decision-making being dominated by corporations, especially U.S.-based corporations. This is why our government has consistently supported the traditional Westphalian governance model based on reasoning that a multilateral conversation between governments is likely to be more equitable than one in which international companies that are larger than most countries can dominate. It is good to see that the Indian government is interrogating this standpoint. This is in keeping with this government’s overhaul of systems to modern decision-making and accountability systems. India will still need to work out details and build on existing efforts like the net neutrality consultation and the multi stakeholder advisory group. We will need to carefully craft our policies to ensure that the process goes beyond giving industry a voice, and encourages independent inputs that effectively safeguard citizens’ rights.

(Chinmayi is the Research Director and Sarvjeet is the Project Manager and Fellow at the Centre)

Applying Multistakeholder Approaches: Threshold Debates at the IGF

The multistakeholder approach to governance (or the notion of multistakeholderism) has emerged as an important and much contested idea in the context of Internet governance debates. This year’s edition of the IGF demonstrated clearly that questions as to the meaning, scope and efficacy (or capacity for efficacy) of these terms remain to be settled.

The notion of a multistakeholder approach was introduced into the Internet governance vocabulary in the outcomes of the second round of the World Summit on the Information Society (WSIS-II). Paragraph 34 of the Tunis Agenda for the Information Society adopted a definition proposed by the Working Group on Internet Governance in its 2005 Report for the term internet governance. That definition runs as follows:

“A working definition of Internet governance is the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.”

There is no real definition of the ‘multistakeholder approach’ or of the term ‘MSism’. Nevertheless, Paragraph 34 is understood to embody a multistakeholder approach to governing the Internet. It would appear to suggest a decentralized, inclusive and participatory approach to making policy, formulating rules and to decision making more generally.

But a key concern is with the plasticity of the term. There is not even a broad consensus in practice or the academic literature around the language that would be most appropriate to capture the type of approach that Paragraph 34 describes. So there has even been some discussion around whether it is appropriate to characterize the notion as a ‘structure’ or ‘model’, as a ‘regime’ on or as an ‘–ism’ or ‘principle’ (see here, for e.g.).

Additionally, there are important questions as to how we must work the approach in practice, absent the clarity that a firm definition would have provided.

One set of concerns relates to the role of governments: Does the approach imply equal footing of actors, so that governments are only one of several actors at a round table, and all actors are equal in status? As a concern with implementation, how will this be achieved given the realities of disparate degrees of power? Does the approach suggest (through the use of the language “in their respective roles” in Tunis Agenda’s Paragraph 34) that there is some hierarchy of actors, such that governments continue as the main policy and rule formulating bodies, but that they are under a duty to consult?

One former diplomat argues that the language is unclear because there was no real agreement as to its meaning at the very inception: “Worse, the wording “in their respective roles” was a perfect example of what diplomats usually describe as constructive ambiguity: an agreement on terms that conceal a disagreement on substance.”

This “disagreement as to substance” played in fairly visible terms at this edition of the IGF.

Ambassador Benedicto Fonseca Filho of Brazil spoke directly to the question of equal footing:

“for government, the basic framework under which we work and we try to be consistent with in everything, at least this is an attempt to try to do in Brazil, is to be consistent with the framework that was established by the Tunis Agenda, which is our basic parameter.  So Tunis Agenda recognizes there are different roles, responsibilities for stakeholders that all of those stakeholders have legitimate concerns and interests. … So that’s does not mean equal role.  Equal role in the context of Tunis Agenda applies specifically to the notion of even enhanced cooperation, in the context referring to public policies, governments should have equal role in designing those. Of course there is an effort in the maximum extent possible. … I think there is a need to maybe have an understanding and, again, I think mutual recognition, mutual respect.”

Mr. RS Sharma, Secretary,  Department of Electronics and Information Technology, Ministry of Communications & Information Technology agreed, and seemed also have some concerns with the ‘multistakeholderism’ label:

“Essentially everyone has a role to play in this game, and this is not a game which is played at one level.  This is a multilevel situation….  It is something role‑based situation, which is happening.  And therefore, it should continue to happen that way.  …. So essentially I think labeling it as multi‑stakeholder is not really the right way to go about it, but really understanding that each component, what does each component of the whole system requires?  And which are the best parties to deal with that problem?  Essentially, that should be the approach.  And if that approach is recognized and accepted, I think we’ll certainly have a very harmonious way of doing things and we should also then be able to have not only a discussion forum that does not lead us anywhere, but a system which can really contribute toward the decision‑making and finally lead to some conclusions.  That’s our approach.  And that’s, I think, what should be pursued.”

The civil society voice at the IGF’s Closing Ceremony presents an interesting, if stark, juxtaposition to Brazil and India’s approach. That speech also demonstrated an unease with the idea of multistakeholderism and with the role of states in the process. Multistakeholderism was a useful device to the degree that it “elevates transnational non-state actors to the same status as governments”. But the multistakeholderism label “misleads”, and results in a problematic framing of the global Internet governance debate. While states, to borrow the WGIG’s language, “in their respective roles” did have a function to perform, they were “the wrong political units for doing global Internet governance”. Multistakeholder processes did implicate state sovereignty and the tensions in the status quo could be addressed by helping elevate present conversation to stage where an independent political community for the Internet, an ‘Internet Nation’, could emerge.

Mr. Sharma, at the same IGF event at which he discussed multi-stakeholder approaches and equal footing, announced an India IGF for November 2014. In theory, the Indian Internet governance process also follows multistakeholder formats. But, given the latent defects in the theory that this post details, its success in practice will depend on, at a minimum, acting with the “mutual recognition” and “mutual respect” that Mr. Sharma endorsed as being necessary. For present, there is little, in the way of empirical information, that allows us to arrive at any conclusions about the success or failure of the multistakeholder approach for Internet governance. Time will have to tell.