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.

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.

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.

No Recognition for the New Generation of Digital Rights

The original article was published on The Wire on 5th January, 2016.

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Plenty of Loose Ends. Credit: Pascal Charest/Flickr CC BY-NC-ND 2.0

The international community’s attempt to shape a new agenda for the Information Society by taking forward the Declaration of Principles and the Tunis Agenda adopted over a decade ago has produced a mixed bag that disappoints more than it pleases.

The WSIS was a two-phase summit which was initiated in 2003 at Geneva and had its second phase in 2005 at Tunis. The summit was a reaction to the growing importance of information and communication technologies (ICTs) in development and a recognition of the crucial role the Internet played in shaping the landscape of the information society. The first phase in Geneva focused on a wide range of issues affecting the information society including human rights, and ICTs for development. The Tunis Agenda in 2005 was focused on developing financing mechanisms for ICT for development and governance of the Internet. The Tunis Agenda was also the first time a globally negotiated instrument articulated a definition of Internet governance and incorporated the notion of multistakeholder governance. However, it was a negotiated outcome in the debate between multilateral and multistakeholder models in global governance. This resulted in the inclusion of the ambiguous concept of  ‘Enhanced Cooperation’ which was conceived as a device to discuss unresolved contentions.

The ten-year review in 2015 was meant to take stock of the changes in the information society since Tunis and create a new agenda for the next decade. The conclusion of the high level meeting with an agreed outcome document means the negotiations were completed successfully. But the outcome itself is a qualified success at best.

Outcome document

The review process has revealed that while there are new concerns that have emerged from the evolution of the Internet and its uses, the underlying debates still remain the same. For instance, human rights and cybersecurity were both issues that were covered by the Tunis Agenda. But the fact that they have their own sections in 2015 highlights the increased importance of both these issues. Internet governance, on the other hand is an issue that has not moved in the last 10 years.

World leaders at WSIS 2003, Geneva, where the original Declaration of Principles were adopted. Credit: Jean-Marc Ferré

World leaders at WSIS 2003, Geneva, where the original Declaration of Principles were adopted. Credit: Jean-Marc Ferré

The inclusion of a separate section on human rights has received praise from all quarters. It is also a testament to the increasing importance of human rights in the information society. The acknowledgement of human rights resolutions from other fora like the Human Rights Council and human rights instruments like the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights is encouraging. This means that nations have an additional mandate to respect human rights obligations while dealing with the Internet and ICT issues. At the same time, it must be noted that no reference was made to the International Covenant on Economic, Social and Cultural Rights which is especially pertinent for countries from the Global South.

It is also disappointing that the document fails to recognise a new generation of ‘digital rights’ that have increased in importance over the last decade. There is only a passing reference to privacy and there is no mention of network neutrality at all. It appears from the statements at the General Assembly that countries like the US and UK were not very keen on privacy and network neutrality. On the other hand, many European countries, notably the Netherlands, were pushing for stronger language on these issues. The outcome text is a negotiated compromise on many issues and the human rights language is the best example of this. But the fact that it ignores widespread public sentiment on issues that will be at the forefront over the next decade is worrying.

On Internet governance, the outcome text calls for immediate, concrete action on Enhanced Cooperation and greater participation in Internet governance institutions. But if this section of the outcome document is compared with the Tunis Agenda, it would seem like nothing has changed in the last decade. The outcome document is an attempt to update many foundational concepts in Internet governance such as Enhanced Cooperation and multistakeholderism. India for its part, reiterated support for a multistakeholder model but also drew attention to the importance of greater representation and participation of actors from the developing world in multistakeholder platforms.  One such platform is the Internet Governance Forum (IGF), whose mandate was extended for another 10 years. Unfortunately the conditionalities of the extension, including showing tangible outcomes on issues like accountability and representation, were diluted during the final negotiations. The outcome document thus failed to adequately address many pressing issues like the need for greater accountability and meaningful participation on Internet governance platforms.

Increasing threats to cybersecurity and the difficulty in dealing with cybersecurity is a concern that all countries were alive to. For developing countries, the capacity to deal with such threats heightened the importance of this issue. The outcome document reflects this position with a separate section on cybersecurity. It recognises the central role of states in dealing with cybersecurity issues, but also acknowledges the role other stakeholders have to play. The role that cybersecurity measures have to play in securing development projects through ICTs and the Internet has also been highlighted. However, the cybersecurity language fails to acknowledge the need to create a safe and secure Internet ecosystem for all users. As it stands, this section takes a securitised view of the Internet. This is unfortunate given that an earlier version of the document circulated last week took a more nuanced approach that focussed on the cyberspace as a safe platform whereas the outcome document takes a protectionist approach . However, like the human rights text, it appears that this was a casualty of negotiated compromise.

India’s Role

India played a critical role in negotiations, and contributed to an international agreement around the idea that all stakeholders, and not just governments, need to be a part of conversations about Internet governance. Speaking at the high level meeting of the 10-year review of the World Summit on Information Society (WSIS), the Indian delegation emphasised the role the Internet and ICTs have played in the country’s remarkable growth story over the last decade. India, along with other developing nation delegations were also quick to point out there is still a lot of work to be done in connecting the four billion people worldwide who have no access to the Internet.

Broadly speaking, India played a crucial role in these negotiations as a key swing state. On many contentious issues, the country played a facilitative role. On issues where the stated government policy aligned with the middle ground, like multistakeholderism and human rights, India took strong positions that helped achieve consensus. This was evident from its statement at the General Assembly supporting multistakeholderism but calling for greater representation. Similarly, India supported the outcome document on many issues like Internet governance, access and development but highlighted its own priorities in the process.

India’s role in bringing the WSIS negotiations to a successful conclusion has not gone unnoticed. Its unequivocal positions on contentious issues have come in for praise in the international community. However, the most difficult part of the process lies ahead in realising the WSIS vision and achieving the SDGs (sustainable development goals) over the next decade. India certainly has a big role to play in fulfilling both these international mandates and domestic development goals. It remains to be seen if it can rise to the challenge.

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 10th Internet Governance Forum (IGF), the United Nations WSIS+10 High Level Meeting, and the 2nd 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 10th 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 2nd WIC. Fadi Chehade, CEO of ICANN at the 2nd 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 2nd 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 2nd 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. 

Final WSIS+10 Agreed Text Draft: Additions, Omissions and Reorganization

The agreed text draft of the outcome document of the WSIS+10 Review has been released. The agreed text is a product of the final negotiations between Member States over the past few days. This draft will be adopted at the High Level Meeting of the General Assembly on the Overall Review of the Implementation of the WSIS Outcomes on 15th and 16th December.  CCG has closely followed the evolution of the text since its first introduction as a non-paper up to the current draft. Read our previous posts here, and here.

The current draft reflects the areas of consensus that has been achieved, and captures how divergent views of various countries and stakeholders have been accommodated to produce a ‘balanced outcome document that is acceptable to all.’ The changes can be seen in terms of additions, omissions and reorganization. Additions in this draft are mostly clarificatory or explanatory in nature and not generally substantive additions. Omissions indicate the areas of disagreement in the text that could not stay in the final draft outcome document. In context of these drafts reorganization of text means that some aspects have been modified and moved from a particular section of the document to another section or part of the document.

Some of the key themes that have seen change in this draft are follows:

ICT for Development and Bridging the Digital Divide:

A significant addition in the preamble that relates to ICT4D is the text in added in paragraph 14 which emphasises that “progress towards the WSIS vision should be considered not only as a function of economic development and the spread of ICTs but also as a function of progress with respect to the realization of human rights and fundamental freedoms”

There is additional text in paragraph 9 that clarifies that while there has been remarkable evolution and diffusion of ICTs it is accompanied with unique and emerging challenges related to the evolution and diffusion of ICTs. In the Bridging Digital Divide section, additional text in paragraph 28 (previously paragraph 25) adds ‘knowledge’ divides along with digital divides. It also clarifies that UN entities facilitating Action Lines would work “within their mandate and existing resources” in studying the nature of these digital and knowledge divides.

Paragraph 29 (previously paragraph 26) adds specific reference to ‘interoperable and affordable’ ICT Solutions ‘including models such as proprietary, open source and free software.’.

Human Rights

This section has seen minimal change. The Human Rights Council Resolution 26/13 finds a place in the text while the specific reference to right to privacy in the paragraph has been removed. The text in the human right section now specifically provides for the right to peaceful assembly and association while the earlier draft did not find their mention.

Paragraph 29 which addresses the protection of journalists, media workers and civil society has additional text that calls for states to “take all appropriate measures necessary to ensure the right to freedom of opinion and expression, the right to peaceful assembly and association, and the right not to be subjected to arbitrary or unlawful interference with privacy, in accordance with their human rights obligations.”

The continued absence of any mention the International Covenant on Economic, Social, and Cultural Rights is notable even when the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights find reference.

Internet Governance:

Reference to internet governance has been removed from the preamble indicating the highly divergent views on this topic. The section of internet governance was among the contested, and the text that is agreed reflects that there is very little that has changed since the Geneva and Tunis phases of the WSIS process.

Paragraphs 60 and 62 reaffirm the Tunis Agenda, and the new draft finds mention of ‘multistakeholder processes’ along with the term multilateral with regards to management of the internet as a global resource. This balances the divergent demands of numerous stakeholders.

While the IGF mandate extension for 10 years remains, the conditionality set that it must show progress on improvements seems have to been diluted with the word ‘must’ replaced by ‘should continue to’ show progress. It must also be noted that ‘outcomes’ has been removed from indicators of progress listed along with modalities, and participation from developing countries.

The text on Enhanced Cooperation has undergone further change. It now takes note of the ‘divergent views held by member states’ and calls for ‘continued dialogue and work on implementing enhanced cooperation.’ The previous draft provided for creation of group to examine the concept, and its implementation. This report of the group would now be submitted to the 21st Session of the Commission on Science and Technology for Development (CSTD) instead of the 73rd Session of the United Nations General Assembly.

 Building Confidence and Security in the Use of ICTs:

The detailed text on cybercrime has been removed and replaced with rather brief paragraphs 58 and 59 that calls on states to intensify efforts to build robust domestic security of and in the use of ICTs

References to Cyber Security Incident Response Teams has been removed, and the text on the ethical dimensions and importance of ethics in establishing a safe cyberspace has been modified and moved up to the preamble, where it also receives a direct linkage to Action Line C10.

Net Neutrality:

The term ‘net neutrality’ has been removed and the paragraph has been diluted to the following text: “We note the important regulatory and legislative processes in some Member States on the open Internet in the context of the Information Society, the underlying drivers for it,” however the text also calls “for further information sharing at the international level on the opportunities and challenges”.

Follow up and Review:

There is new text that invites a High Level Political Forum to consider the reports of the CSTD on development with regards to the follow up and review of the 2030 Agenda for Sustainable Development.  Both paragraph 75 and 76 speak about the Partnership on Measuring ICT for Development. This in all probability could be an erroneous repetition than a conscious reiteration.

The next High Level Meeting on the overall review of the implementation of the WSIS outcomes has been fixed for 2025 and encourages the outcome of this meeting to feed into the review process of 2030 Agenda for Sustainable Development.

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 7th 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 73rd 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.