IANA Transition completed

By Aarti Bhavana

The much-discussed IANA transition has finally been completed, now that the U.S. Government’s contract with ICANN for IANA Functions has expired. This brings to an end the governmental oversight of these functions, a plan outlined back in 1998, and transfers it to a global multistakeholder community. The Centre for Communication Governance’s coverage of the transition over the last two years can be accessed here. In addition, our recent report on multistakeholderism discusses the role Indian stakeholders have played in ICANN over the last 5 years. It is a useful introduction to the way policy is made in ICANN’s multistakeholder model.

In March 2014, National Telecommunications and Information Administration (NTIA) under the U.S. Department of Commerce announced its intent to transfer the oversight of key Internet domain name functions to a global multistakeholder community. In the months that followed, working groups were set up to develop proposals both for the stewardship transition, as well for enhancing ICANN’s accountability. Both proposals were finalized and sent to the ICANN Board of Directors to be transmitted to NTIA. On 9th June 2016, after careful evaluation, the NTIA announced that the proposals met the criteria outlined by the NTIA in March 2014.

Despite meeting all the requirements set out, the weeks leading up to today have been far from smooth. Last week, the U.S. Senate Judiciary Sub-committee held a hearing on “Protecting Internet Freedom: Implications of Ending U.S. Oversight of the Internet.” The opposition from the Republicans, led by Sen. Cruz, has also been supported by Donald Trump. There were also attempts to delay the transition by including a rider in the U.S. Government funding bill. This was ultimately not added, leaving the path clear for the transition.

However, in a dramatic twist two days ago, four U.S. states filed a lawsuit in Texas to block the transition. The motion for a temporary injunction was heard by the federal court a few hours ago, and denied. This officially brings a two year long process to a successful end. Many Indian stakeholders participated in the transition process as members of the multistakeholder community. However, as our report on multistakeholderism shows, there is scope for greater Indian engagement with ICANN and its policy processes.

In the midst of this celebration, it must be remembered that the work is not over. Efforts at increasing ICANN’s accountability are still ongoing with Work Stream 2, and consist of several critical topics like transparency, diversity and human rights that require the same level of effort as the transition. As discussed in our report‘s on ICANN Chapter, accountability is an issue on which ICANN has faced serious complaints in the past. The next stages of the transition offers stakeholders an opportunity to address these questions.

 

Implications of the US-India Cyber Relationship Framework

By Lily Xiao

On 7 June 2016, ongoing discussions between Prime Minister Narendra Modi and President Barack Obama culminated in the US-India Cyber Relationship Framework, expected to be signed within 60 days. As part of a deepening strategic partnership between the US and India, the Framework establishes a bilateral commitment to an open, interoperable, secure and reliable cyberspace environment, and bilateral measures to combat cybercrime. As India’s interests find commonality with those of the US, this post considers what implications the Framework has for India’s foreign policy on Internet governance.

Cybersecurity measures and the Budapest Convention

The Framework instructs on the implementation of a range of bilateral and cooperative cybersecurity measures. They include information sharing, on a real or near real time basis regarding malicious cybersecurity threats; developing joint mechanisms for practical cooperation to mitigate cybersecurity threats; cooperation in research and development; and improving the capacity of law enforcement agencies through joint training programs.

These measures bear some resemblance to Article 23 of the Convention on Cybercrime or Budapest Convention, which was drafted by the Council of Europe in 2001. Article 23 stipulates that signatories ‘shall cooperate with each other… to the widest extent possible for the purposes of investigations or proceedings concerning criminal offences related to computer systems and data, or for the collection of evidence in electronic form of a criminal offence’. The US has suggested that India should join the Budapest Convention, and reiterates this bid in the Framework to ‘[promote] the applicability of international law to state conduct in cyberspace and further exploring how it applies to state conduct in cyberspace’.

However up until now, India has refused to sign the Budapest Convention because they were not involved or consulted in its drafting. While the insistence of the US may be a political factor India considers, this does not change the crucial problem India has with the Budapest Convention; namely that it does not sufficiently reflect India’s priorities regarding cybersecurity. In order to prevent cyber attacks, most notably from China, India’s priority is to establish an equitable and inclusive multilateral instrument, which is created with active participation from all signatories, not just those in Europe.Multilateral cooperative agreements are the most viable solution to combat cybercrimes, because the Internet, by is nature, is unconstrained by state borders, making cybercrimes difficult to attribute to a single country of origin. Thus, bilateral agreements, like the one initiated by this Framework with the US, can only go so far in combatting cybercrime.

India’s recommitment to multi-stakeholderism

In August 2015, India came out in favour of multi-stakeholderism, the model of Internet governance in which all stakeholders have an equal role to play. The Framework indicates the apparent convergence of the US and India’s approaches to Internet governance, citing bilateral support for the multi-stakeholder model of Internet governance that is ‘transparent and accountable to its stakeholders including governments, civil society and the private sector, and promotes cooperation among them’. Questions over India’s commitment to multi-stakeholderism were raised following the joint statement released in April 2016 with Russia and China. Understandably, the US had concerns following the release of this joint statement, which may have led them to ensure the language of the Framework was clearly in support of multi-stakeholderism. The consequences of this Framework for India’s relationship with Russia and China will be considered later.

However, India’s implementation of multi-stakeholderism is not without limitations.The Minister for Communications and IT has stated thatIndia’s approach to multi-stakeholderism is qualified by national security matters, as the government’s role should be given primacy over other stakeholders in this regard.Additionally, India has yet to develop consistent and wide-ranging domestic mechanisms for implementing multi-stakeholderism, which would allow India to increase its participation in Internet governance at the international level.By including a bilateral commitment to multi-stakeholderism and continued dialogue and engagement in the Internet governance fora, the Framework can be interpreted as the US addressing India’s hesitations regarding the multi-stakeholder model. However, whether the approaches of India and the US towards Internet governance truly converge outside of this Framework remains to be seen.

Conflicting interests of Russia and China, and India as a swing state

The Framework comes after the aforementioned joint statement issued by Russia, China and India earlier this year. Paragraph 12 of this joint statement emphasised the need for a ‘broader international universal regulatory binding instrument under the UN’to tackle cybercrime, suggesting a preference for a multilateral governance model with entrenched state sovereignty. In the same paragraph, the Ministers emphasised the need to ensure Internet governance will be based on ‘multilateralism, democracy, transparency with multi-stakeholders in their respective roles and responsibilities’. This language is nearly identical to that used in the outcome document from WSIS +10 High Level Meeting, which stipulates ‘the management of the Internet as a global facility includes multilateral, transparent, democratic and multi-stakeholder processes’. The only qualifying phrase in the joint statement that indicates the reluctance of Russia and China to embrace multi-stakeholderism is that multi-stakeholders ought to be considered ‘in their respective roles and responsibilities’.

Therefore, while the debate over Internet governance is framed as one between the increasing acceptance of multi-stakeholderism, and those who hold out for a state-centric governance model, the language used in diplomacy between the two sides is remarkably similar. As a ‘swing state’ in this diplomatic arena, India holds power as being politically valuable to both sides of the debate. If India can continue to take advantage of the flexibility in discourse of multi-stakeholderism by appealing to both the US, and Russia and China, it can act successfully as a ‘swing state’. However, if, and when India and the US commit to the agreement this Framework pertains to, India should ensure that its bilateral relationship with the US does not impede its relationship to Russia and China.

Conclusion

This Framework is part of a wider arrangement for the US-India relations to deepen ties and to look to each other as ‘priority partners’ in the Asia-Pacific and Indian Ocean region.It remains to be seen whether all these provisions regarding cybersecurity will be included in the final signed agreement, but if they are included, it may contribute to the further acceptance of multi-stakeholderism on a global scale, and be an indication of cybersecurity norms to be taken up by other governments.

Global Public Interest and ICANN

By Gangesh Varma

Global Public Interest is a difficult term to define. Any attempt to define it has always been met with resistance, or dissatisfaction. Yet, it features prominently in ICANN’s universe – through its bylaws, documents and contracts. In this post, I recapitulate the discussions surrounding global public interest within ICANN’s remit, the subject of a high interest session at ICANN 55 earlier this month.

Debates surrounding the term were revived during deliberations of the Cross-Community Working Group on Enhancing ICANN’s Accountability (CCWG-Acct). It was among the most difficult issues discussed due to diverging perspectives from various stakeholders. One of the recommendations of the CCWG-Acct is to embed the concept in the core values of ICANN’s bylaws as follows:

“Seeking and supporting broad informed participation and reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent.”[1] [Emphasis added]

ICANN’s struggle with global public interest is not new or isolated to the transition process. In 2013-14, a Strategic Panel led by Nii Quanyor examined this topic. The Report of the Panel attempted a broad definition of global public interest as follows:

“ICANN defines the global public interest in relation to the Internet as ensuring the Internet becomes, and continues to be, stable, inclusive, and accessible across the globe so that all may enjoy the benefits of a single and open Internet. In addressing its public responsibility, ICANN must build trust in the Internet and its governance ecosystem.”[2]

This broad and aspirational definition formulated by the Strategy Panel, did not receive complete support from the Community. However, it was not entirely rejected. This was the basis of further effort to source an understanding of the concept from the various departments within ICANN. The Development and Public Responsibility Programs Department at ICANN conducted a survey across the organization. It compiled resources and research on this subject to facilitate a discussion within ICANN’s multistakeholder Community i.e. the Supporting Organizations (SOs) and Advisory Committees (ACs).

Following this stock-taking, the session at Marrakech also updated the Community on a workshop organised on this subject at the Internet Governance Forum last year. The workshop discussed the idea of global public interest with reference to critical internet resources[3].  It highlighted the various traditional understandings of “in public interest” that is usually associated with developing regulation. It also focussed on the linkages between public interest and human rights including concepts like social justice, equal access, cultural diversity etc. It highlighted the regional perceptions of public interest and its possible contribution to conceptualizing ‘global public interest’. One of the key takeaways from the IGF workshop that resonated at the session in Marrakech was the idea that public interest is an aspirational goal, and cannot be fully achieved.

The diverging views are broadly in two categories. First, public interest as a concept that has a specific definition that can be articulated and achieved in each case. Second, is a broader perception of public interest. Here, it is perceived to be a purely aspirational goal, which must not be defined because it varies with context and is easily susceptible to exceed ICANN’s limited mission. While fears of such ‘mission creep’ are not unfounded, it must be noted that public interest appears not only in ICANN’s bylaws, but also as a criteria in some of its contracts. This compels a clearer and more tangible definition of the concept.

ICANN can take a two-prong approach to this challenge. First, is to pursue a definition for the broad aspirational goal that can be applied across its operations. As suggested during the session at Marrakech, the starting point could be definition of the Strategy Panel. This can be further refined and developed with the support of principles from the NETmundial meeting that were achieved through a global multistakeholder process. The Report titled “The Public Core of the Internet” is a resource that can help create the idea of critical internet resources as a global public good. This would protect the core infrastructure of the internet from unwarranted interventions by states or other stakeholders. Inspiration can be drawn from similar concepts in international environmental law, particularly that of the ‘common heritage of mankind’.  The second prong, would focus on key instances of specific use of public interest criteria in ICANN’s contracts and operations. Here, developing a tangible and functional definition using the inventory created is necessary. Lessons can be drawn from conceptualization of public interest in disciplines like international investment laws.

Currently, ICANN has turned to its SOs and ACs to consider this arduous task of defining global public interest. The idea of setting a Cross Community Working Group has been suggested, and a mailing list for discussions has been set up.The Wiki page  made is an invaluable resource for anyone to begin their engagement in this discussion.

[1] See page 5, and 19 of Annex 05

[2] See Page 4 of Report of Strategy Panel on the Public Responsibility Framework available here

[3] During the WSIS Process, the United Nations Working Group on Internet Governance described critical Internet resources as including the administration of the Domain Name System, the Internet Protocol addresses, administration of the root server system, technical standards, peering, and interconnection, as well as telecommunication infrastructure, including innovative and convergent technologies.

Implementing Enhanced Cooperation

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.

Three Questions on Digital Trade

The inclusion of an e-commerce chapter in the recently concluded TPP Agreement has sparked off a debate around the world on internet issues being a part of trade agreements. In my last post I had looked at the efforts of civil society groups trying to engage with various trade negotiation processes through the EFF Meeting in Brussels. In this piece, I identify three issue areas that borrow from both trade and internet governance worlds to form some of the foundational concerns in this emerging area.

  1. Incorporating Internet Governance norms

One of the criticisms of the inclusion of internet related provisions in trade agreements has been the way it is framed. As provisions that govern e-commerce, TPP and similar new generations trade agreements adopt a commoditized approach to internet regulation. This may not be a problem in and of itself. But, in the absence of hard law rules internationally on many internet-related issues, there is a danger that the trade law rules could become the default international rules on many of these issues. The TPP for instance contains provisions that could potentially impact privacy, the disclosure of source codes and network neutrality.

However, these issues are being resolved at either the national or regional levels through public consultations, guidelines and even legislations. One such example is the recent debate in India over network neutrality. To create a regulatory environment that gives states enough space to make rules on such issues, such domestic or regional rules as standards should be incorporated in future agreements. This will ensure that laws that are enacted from an internet governance standpoint are not superseded by commercial rules.

  1. Human Rights and Social Obligations

The problem with trade rules that often take a commoditized approach to privacy and network neutrality is that they are either human rights or have human rights implications. Privacy has over the last few years been recognised internationally as a human right. Network neutrality on the other hand has significant free speech implications and can also affect the right to access which is also being seen as a right. There has been discussion in the past for an “Internet Bill of Rights”. While this is yet to take any tangible form at the international level, there are a group of human rights -like free speech, privacy and the right to, access to name a few- that have taken on greater importance in the context of the internet.

The recognition or mention of these rights in trade agreements will, 1) ensure that these rights aren’t eroded and 2) encourage the diffusion of human rights through trading partners. This is not without precedent. The EU has for long incorporated human rights provisions in its engagement with third parties. On environment and labour issues, both the EU and US trade agreements over the last decade have included “Social Standards” that must be enforced domestically by the trading partner. Extending this treatment to internet rights will only be a continuation of existing trade policy.

  1. Excluding Developing Countries from Rule Making

The biggest impact of these agreements is the shift of the trade regime away from a multilateral setting like the WTO. By negotiating plurilateral and mega-regional agreements between a small group of countries, the TPP, TISA and TTIP (to name a few) are making new rules on trade and creating higher standards. But this also means that a large majority of countries are excluded from these rules which are likely to become the new standards for trade and also potentially affect development goals.

E-commerce chapters in the TPP and TISA (proposed) are the best examples of this phenomena. The internet over the last decade has been an engine of growth across the world and especially in developing countries. A significant part of this has been through the exchange of goods and services online. In the absence of rules to govern the internet internationally, all countries are at a relatively equal footing to benefit from the digital economy. However, as these new generation agreements create new rules and standards for participation in the digital economy, it could also potentially create barriers for developing countries to participate in it. While there is no obvious solution to this issue, keeping the internet open and accessible should go some way in resolving it.

Resolving the above three questions should bring coherence to policy debates around e-commerce rules in trade agreements. The debate is complicated as it involves the overlap of two competing global regimes. But there are policy gaps that can be filled by engaging on the above issues in a meaningful way.

The World Economic Forum and Internet Governance

By Gangesh Varma

The World Economic Forum (WEF) held its annual meeting at Davos from 20-23 January, 2016. The theme of the meeting was ‘The Fourth Industrial Revolution’ which referred to advent of new technologies that converge “the physical, digital and biological worlds” to create seamless ‘cyber-physical systems’. Some of the main sessions and discussions were on the digital economy, privacy, internet fragmentation etc. While these are concerns that affect internet users currently, they will determine the future of the Internet and its users.

The WEF’s interaction with the Internet and its governance is not restricted to these discussions at the annual meetings. It was instrumental in launching the NETMundial Initiative (NMI) in collaboration with the Internet Corporation for Assigned Names and Numbers (ICANN), and the Brazilian Internet Steering Committee (CGI.br). The WEF which was founded in 1971 has always promoted a ‘stakeholder’ management approach, which essentially based corporate success on managers taking account of all interests. This would mean not merely restricting it to immediate interests such as shareholders, clients and customers, but employees and the communities within which they operate, including government. The natural extension of this can be seen in the WEF’s strong support for a multi-stakeholder approach to internet governance. This can be seen from its various reports and initiatives like the NMI and the Future of the Internet.

As the internet permeates deeper into the socio-economic fabric of human society it impacts various sectors. As a consequence, global fora that did not traditionally discuss the internet are impacted by it. This results in a growing number of fora that eventually discuss internet governance or any of its components. Among these, the WEF as a platform for collaboration may be considered old, but it was formally recognized as an international organization only last year. In the larger matrix of internet governance institutions and processes the WEF is merely one more addition. However, the WEF comes with extensive criticism for being a platform that is limited to an elite few while its relevance has often been debated. It has been called out for its hypocrisy while talking climate change, gender parity and inequality.

These ironies undermine the legitimacy of the discussions and outputs from such fora. It also affects the multistakeholder initiatives they support. An interesting study hypothesizes the situation of a ‘cyber davos’ in 2025 where the world’s largest internet companies and leaders gather to celebrate the first anniversary of the internet Free Trade Agreement (iFTA) . The group that conducted this study identified some of the potential threats of such a scenario as:

  • Increased dominance of big business in global Internet governance
  • Less economic innovation and creation of monopolies,
  • Marginalization of civil society groups in Internet governance policy making,
  • Exclusion of developing countries from Internet governance policy making,
  • Increase of income inequality domestically, and between the Global North and South and
  • Democratic institutions weakened by excessive lobbying

Unsurprisingly, these potential risks do not seem too far into the future if the multi-stakeholder approach is not reformed. In fact they resonate with most critiques of multi-stakeholder models. The support for multi-stakeholder approaches has grown as evidenced by the agreed outcome document of the WSIS+10 Review Process. However, the negotiations and consultations have revealed many aspects that need reform. ICANN’s CEO, Fadi Chehadé’s pitch at Davos was on the enormous impact of the Internet on global economic growth, and the importance of the Internet as an engine of growth. Fadi is scheduled to leave ICANN in March, 2016 and enter his role as Senior Advisor to the Executive Chairman of the WEF. One can only hope that while the WEF addresses its critics, it will also invest in reforming the multi-stakeholder approach it promotes in the internet governance arena.

A New Agenda for Digital Trade: Ideas from Brussels

This author was one of the participants in the strategy meeting at the invitation of the Electronic Frontier Foundation

The Strategy Meeting on Catalyzing Reform of Trade Negotiation Processes was held last week in Brussels. Convened by the Electronic Frontier Foundation (EFF), it brought a diverse group of actors to chart an agenda to engage with trade negotiations in the emerging area of Digital Trade. Representatives from civil society groups, academia and the private sector met together to suggest solutions to make trade negotiations more transparent and accessible.

The meeting was prompted by the recent conclusion of the Trans Pacific Partnership and its inclusion of an e-commerce chapter. The TPP is the first of many new generation trade agreements- which include both mega regional and plurilateral agreements- which are increasingly making trade rules that affect the internet. Given that there is a global internet governance regime which does not create any hard law obligations, there is a danger of the trade law regime becoming the de facto international rules on the subject.

To address this pressing concern, the EFF convened policy practitioners and experts from both the internet governance and trade fields. Participants highlighted the need for research at the intersection of these diverse fields to understand the impact of trade agreements on the internet and the information society. The larger and more immediate concern of all participants was of the confidentiality under which these negotiations are being conducted. This is also at odds with the participatory norms of various internet governance institutions which count for openness, transparency and accountability as their governing ideals.

Aside from the diverging approaches to participatory norms and governance, trade agreements are also at odds with internet governance frameworks. For instance, many internet governance fora are multistakeholder platforms which allow for the participation of the civil society, private sector and technical communities on equal footing with governments. Trade agreements or even institutions like the World Trade Organization are multilateral and allow for very little access to other stakeholders.

The approach of trade agreements to substantive issues reduce the regulatory space available on many internet-related rules. Trade agreements aim to promote trade through liberalization. This often leads to a commercialised or commoditised approach to many of the issues they make rules on. This is evidenced from the debates and cases on issues like environment and intellectual property where policies of national governments taken in public interest have come in to question. Such a commoditized framework of rules has already been extended to the internet by the TPP. It is perhaps telling that the chapter that deals with internet related issues is called the ‘E-commerce’ chapter. However, many of the provisions of the chapter go beyond e-commerce and contains rules on issues like privacy, data transfers and net neutrality- which are core internet governance issues. Coupled with a dispute resolution mechanism, the trade regime on the internet could potentially subsume internet related policy making at the international level.

With these problems in mind, the participants at the meeting, had to come up with workable strategies to engage with trade negotiations on internet-related issues. The meeting split into breakout groups that looked at 3 broad issues: 1) transparency and new norms, 2) advocacy and liaison with allies and 3) civil society funding, capacity building and coordination. Some solutions like creating a civil society coordination group and creating a space for multistakeholder engagement were on process. Others, like creating expert groups and producing research at the intersection of these two new areas were on substance.

The strategy meeting was very useful in terms of bringing together a group of experts from two different fields. It also made everyone alive to the challenges that lay ahead in the intersectional area of internet and trade. The strategies that were suggested also reflected this diversity of thought with a mix of ideas from the trade and internet governance worlds.  The meeting concluded with efforts to draft a common statement which left the participants with a rich agenda for future work on internet and trade issues.