No Recognition for the New Generation of Digital Rights

By Puneeth Nagaraj and Gangesh Varma

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

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

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.

Puneeth Nagaraj and Gangesh Varma are 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. 

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 15^th and 16^th 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 21^st Session of the Commission on Science and Technology for Development (CSTD) instead of the 73^rd 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 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.

CCG’s Analysis of the WSIS+10 Draft Outcome Document- Initial Thoughts

By Puneeth Nagaraj

The draft outcome document for the World Summit on Information Society (WSIS) High Level Meeting in December has been released today (it can be accessed here). This draft is a revision of the Zero Draft based on discussions held in New York last month i.e., the 2nd Preparatory Meeting and the 2nd Informal Consultations. Our coverage of those two meetings can be found here. The Outcome Document will be the basis for informal multilateral discussions to be held from 19-20 and 24-25 November. As per our understanding at this point, these discussions will be closed door meetings between country representatives and will not be open to other stakeholders. Below is a summary of the major changes from the Zero Draft to the Outcome Document:

New Section on Human Rights

Easily the most contentious part of the Zero Draft which had subsumed Human Rights discussions under the heading of Internet Governance. This had attracted criticism from civil society groups and many Member countries. The Draft Outcome Document now contains a separate section on human rights. In terms of content, this new section on Human Rights is notable for the explicit recognition in Paragraph 38 of journalists, bloggers and civil society actors in supporting freedom of expression and plurality. This is a big and welcome change from the Zero draft which only cited the freedom of press in the limited context of journalists. Paragraph 38 is also important given the recent attacks against bloggers in many countries who have been targeted for expressing their views online.

Also notable is the explicit recognition of the Right to Development in Paragraph 40 and the reaffirmation of the universality, indivisibility, interdependence and interrelation of all human rights. The latter is a concept enshrined in the Universal Declaration on Human Rights and an integral component of International Human Rights Law. Its recognition in the Outcome Document is important as these concepts need to be reinforced in the Information Society. This is because many of the rights based discussions online are often connected to other issues such as development, access and security. These cannot be discussed in isolation. This idea has been discussed in some detail in CCG’s comment on the non-paper.

The emphasis placed on the right to privacy on the context of mass surveillance in Paragraph 42 is also a new addition. This expands on the earlier Paragraph 43 from the Zero Draft which merely encouraged stakeholders to respect privacy and the protection of personal information. The expanded Paragraph 42 in the outcome Document is a vast improvement, calling on countries to respect International Human Rights law as it relates to mass surveillance. Para 42 also explicitly cites General Assembly Resolution 69/166 which recognised the Right to Privacy in the Digital Age.

Though the improvements to the Human Rights paragraphs in the document are welcome, Human Rights is still listed as the 2nd section which is contrary to the calls made by civil society groups to list it as the first.

Linkages with Sustainable Development Goals (SDGs)

A common concern across stakeholder groups in the October meetings was to link the WSIS process with the SDGs. While earlier drafts cited the SDGs, they failed to identify specific goals that could be linked with the WSIS process. Though the SDGs do not a have a separate goal that mentions ICTs or the internet, the understanding was that as a cross-cutting issue there are many potential linkages between the two processes.

The capacity of ICTs to facilitate the fulfillment of all SDGs has been mentioned in Paragraph 14. It also lists Goal 4b on Education and Scholarships, Goal 5b on Women’s Empowerment, Goal 9c on Infrastructure and Access and Goal 17.8 on Technology Bank and Capacity Building as specific goals where this linkages can be particularly useful. In Follow Up and Review, the document in Paragraph calls for the CSTD review to feed into the SDG process in Paragraph 58. Additionally, Paragraph 62 designates the High Level Meeting in 2025 as an input process into the 2030 Review of the SDGs.

ICT for Development

In this section, the Outcome document takes a more nuanced view of development issues and the Digital Divide, however a few key ideas are still missing.

Paragraph 19 on cultural expression and Paragraph 23 on Local Content in different languages highlight the need for greater diversity online. The discussion on the Digital divide has also improved from the Zero Draft with Paragraph 22 calling for the creation of knowledge societies and for UN bodies to analyse the nature of the digital divide.  Paragraph 25 dedicated to the Gender divide is a much needed addition and it calls for immediate measures to address this divide. However, the discussion on the digital divide is lacking in that it fails to recognise that the digital divide is a manifestation of existing socio-economic inequalities. It also fails to reognise that access to the internet and ICTs should be rights based and equitable. While the role of ICTs in development is not disputed, having differential access to ICTs or the internet can actually serve to exacerbate the digital divide. Though this point has been made repeatedly, the draft outcome document does not acknowledge it.

Paragraph 36 is also notable as it calls for new mechanisms to fund ICT4D as opposed to the Zero Draft which called for the Digital Solidarity Fund to be reviewed. The position on the DSF has since changed as States and other stakeholders in October recognized that the DSF cannot be strengthened and a new mechanism is necessary.

New Section on Security

Much like human rights, many countries- especially the G77+China- called for a separate section on security issues. Thus, the outcome document has a new section 3 on Building Confidence and Security in the use of ICTs which was the erstwhile Section 2.3 in the Zero Draft.

Paragraph 45 is a change from the earlier Paragraph 46 in the Zero Draft. It notes the ‘leading role’ of governments in cybersecurity as opposed to the Zero Draft which called on them to play an enhanced role. The recognition of the need for security measures to be consistent with Human Rights is a much needed change.

Paragraph 46 of the Draft Outcome Document on cyber-ethics has been expanded to explicitly refer to the need to protect and empower children, women and girls.

Paragraphs 48 and 49 call for greater cooperation among States on cybersecurity matters. In a change from the Zero draft, these paragraphs have placed greater emphasis on cooperation and information sharing across stakeholders and between States. The call for an international cybercrimes convention in the Zero Draft has been changed to an acknowledgment of the call for such a convention.

Internet Governance

The absence of the mention of multistakeholderism or multistakeholder approaches is conspicuous in this Section. In fact Paragraph 50 suggests that internet governance is a multilateral process with “the full involvement of all stakeholders”.

The mandate of the IGF should be extended by 10 years according to Paragraph 54. However, it calls on the IGF to incorporate the findings of the CSTD Working Group on Improvements to the IGF and that the IGF should show progress on these lines. On Enhanced Cooperation, Paragraph 56 calls on the Secretary General to provide a report to the next (71st) General Assembly on the implementation and means to improve Enhanced Cooperation.

Follow-Up and Review

The most notable addition is the call for a High Level Meeting in 2025 to Review the WSIS Outcomes in Paragraph 62. This suggests some sort of a compromise between States as there were multiple proposals on whether there should be a Summit or a High Level Meeting. The section is also notable for the explicit recognition of the ways in which the WSIS Process can be linked with the SDGs. Other than the linkages mentioned above, Paragraph 52 calls for the WSIS Action Lines to be closely linked to the SDG process.

The Outcome Document is a more complete Document than the Zero Draft in many ways. However, there are a few issues that need to be ironed out before the High Level Meeting. With the process closed for stakeholders from now on , most of these changes will largely come from States. Though the co-facilitators have called for comments to be sent on the Draft Outcome Document, it is not on the same scale as the public comment periods and it is not clear how much these suggestions will be taken into consideration by them. In the absence of another Informal Consultation, their interaction with stakeholders at the IGF may be the last opportunity to participate in this process before the High Level Meeting.

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

Index of CCG’s WSIS+10 Review Coverage

To help readers navigate our coverage of the 2nd Preparatory Meeting, we have indexed our posts from the last 3 days. Please find them below:

• Summary of Day 1

https://ccgnludelhi.wordpress.com/2015/10/20/2nd-preparatory-meeting-of-wsis10-review-summary-of-day-1/

• India’s Statement on Day 1

https://ccgnludelhi.wordpress.com/2015/10/20/wsis10-zero-draft-indias-statement-at-the-2nd-preparatory-meeting/

• Summary of Day 2- ICT4D

https://ccgnludelhi.wordpress.com/2015/10/21/2nd-preparatory-meeting-of-wsis10-review-summary-of-ict4d-discussions-on-day-2/

• Summary of Day 2- Internet Governance

https://ccgnludelhi.wordpress.com/2015/10/22/2nd-preparatory-meeting-of-wsis10-review-summary-of-internet-governance-discussions-on-day-2/

• India’s Statements on Day 2

https://ccgnludelhi.wordpress.com/2015/10/21/indias-statements-on-day-2-of-the-2nd-preparatory-meeting-of-the-wsis-review/

• India’s Statements on Day 3

https://ccgnludelhi.wordpress.com/2015/10/22/indias-statement-on-cybersecurity-on-day-3-of-2nd-preparatory-meeting-for-wsis-review/

https://ccgnludelhi.wordpress.com/2015/10/22/indias-second-statement-on-cyber-security-references-digital-india/

https://ccgnludelhi.wordpress.com/2015/10/23/indian-statements-on-implementation-and-follow-up-at-2nd-preparatory-meeting/

Indian Statements on Implementation and Follow up at 2nd Preparatory Meeting

By Puneeth Nagaraj

India made a third statement today, this time on the Implementation and Follow up of the WSIS Review. Below is the Statement:

The essence of what we’ve been discussing is Implementation and Follow-up. Talking about action lines is also talking about implementation. It is an assessment of whether we have succeeded or not. The WSIS document is commendable as it stands. We are in favour of an ongoing review process. But also support a High Level Meeting to look at these at some point. We do not understand approach of not changing anything or changing Action Lines. We’re talking about a dynamic platform like the internet, the manner in which it has changed the economy, lifestyles of people around the world would tell us that more is yet to come. Therefore we must be talking constantly about Cybersecurity, ICT4D and human rights as change is happening at rapid pace. Not being ready to review Action Lines or High Level Meeting that brings to attention issues that needs to be addressed is not understandable. Support Review Process and High Level Meeting at a period agreeable to Member states.”

In response to a query from the US on why a Review was needed the Indian delegation had the following to say:

This Review platform is a different one from the ongoing review. If ongoing review was efficient we wouldn’t be sitting here. Review must happen at the UNGA in 2020. We will continue to call for it.We urge the reconsideration of the approach that Review or High Level Meeting is not needed. Societies that have reached a certain level of development and want to manage growth over the next 10 years like India need Review. India is targeting internet for all by 2020. There will be several consequences for all. It will be mostly positive, but there might be negative as well. We are an open democracy. Voices are expressed and encouraged in India. UNGA must have Review in 2020.

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

India’s Second Statement on Cyber Security, References Digital India

By Puneeth Nagaraj

India made a 2nd statement on cyber security and the WSIS today, highlighting the importance of a secure environment for development programmes for ICTs. India highlighted the Digital India programme in its statement. The summary is below:

India re-emphasized the importance of cybersecurity both from the point of view of economic development and national security. India also disagreed with Japan on the importance of cybersecurity for development pointing to the Digital india Initiative. India argued that the Digital India Initiative, which is taking e-services to all citizens in country needs to be supported by a secure environment and cybersecurity is an important part of this. India also stressed the importance of protecting  critical internet resources for India. India went on to Encourage Member States to present concrete, clear proposals on cybersecurity. India suggested having more Confidence Building Measures and raising awareness. India also supported Brazil on finding that the Budapest Convention as it stands is not sufficient to tackle cybercrimes.

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

India’s Statement on Cybersecurity on Day 3 of 2nd Preparatory Meeting for WSIS+10 Review

By Puneeth Nagaraj

During discussions on cybersecurity in the Zero Draft of the WSIS+10, the Indian government made a statement calling attention to the increasing cyber threat and “malicious activities” online. Below is a summary of the statement:

We must recognize that Cyberspace is now the 5th domain as there is increasing innovation with information technology and cyber technology. However, we must protect existing infrastructure and information contained in infrastructure as malicious activities online are increasing exponentially with improvement in technology. Hence, the security of infrastructure is paramount, we must work together to prevent this through exchange of information and collaboration. Steps must be taken in comprehensive manner to improve R&D and technology transfer to counter cyber threats.

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

2nd Preparatory Meeting of WSIS+10 Review: Summary of Internet Governance Discussions on Day 2

By Puneeth Nagaraj

The discussions on Internet Governance ended midway through the second session on day 2 with the perception that there is broad support for most issues. The length of the IGF extension remains a sticking point with proposals for 5,10 and 15 year extensions being suggested. The call for an international legal framework for internet governance (IG) has also attracted much debate. There has been a lot of discussion on Enhanced Cooperation with a lack of clarity on the G-77 proposal for Enhanced Cooperation.

Below is a summary of the major proposals:

South Africa (on behalf of G-77 plus China): Called for an approach to IG involving respect for the multistakeholder approach and different roles and responsibilities based on the Tunis Agenda. However, they stressed the role of the State in stating that the overall authority on internet related issues must remain with sovereign powers. South Africa also expressed, called for  governance mechanisms to add impetus towards ideal ICT framework, based on agreed set of ethics. They also stated that the Tunis Agenda defines the roles of government and non-government stakeholders and that this is a good framework to review the roles of various stakeholders with. They raised the issue of unequal capacities of governments to deal with international public policy issues and that this issue has to be addressed in discussions on Enhanced Cooperation through Para 67 of the Tunis Agenda.

European Union: The EU stated that IG should follow multistakeholder principles as agreed in Tunis and Geneva. Such a framework should be open, inclusive, transparent. They stated that the outcome document can call for more open and inclusive IG for greater participation from developing countries. Responding to South Africa and the G-77, they stated that  all stakeholders have roles to play in the information society, no one can achieve the aims of WSIS in isolation. This they said would require open and inclusive decision making with strong cooperation between stakeholders. The EU described Enhanced cooperation as an ongoing process and that it can never be completed or be fully implemented. They also described Enhanced Cooperation as a multistakeholder process.

They opposed an international legal framework on IG as stated in Para 36 of the IG and called for a 10 year extension to the IGF. Their positions were broadly supported by the UK, Netherlands and Germany in the session. On the extension of the IGF and opposition to the International Legal Framework was supported in addition by the US, Japan, Canada and Australia.

United States: The US stated that IG should not have goals of its own, as per Tunis Agenda and is neither an end nor means by which ends are pursued. But that it is a manner in which processes are is practiced. The US stated that WSIS goals  are not goals of IG, but goals for IG. They also recognized the universal support for the multistakeholder approach, and called on it to be practiced internationally and domestically for tangible and meaningful outcomes. The US also called for the deletion of para 36 on an international legal framework for IG and cited the unfairness of the process of the Preparatory Meeting to other stakeholders without the opportunity to publicly advocate and defend positions. Like the EU, the US also called Enhanced Cooperation an ongoing process and that they would support more substantive participation if necessary. On the IGF, they suggested a 15 year extension later in the session to better link it with WSIS and SDG outcomes. In this proposition, they were supported by Japan.

China: Called for the IG section of the Zero Draft to be  improved. They also stated that improving the IGF should entail multilateral, transparent and accountable processes which would ensure participation of all governments and stakeholders. They expressed support for maintaining a mulsitstakeholder approach within such processes within their respective roles and responsibilities. China stated that the multistakeholder approach should not be lopsided and only stress the role private sector and NGOs while  marginalizing governments and governmental organizations. China also sought to emphasize governmental roles in public policy issues.

Latvia: The representative of Latvia as the former head of the Preparatory Committee for the Tunis Agenda intervened with important clarifications on the meaning of certain provisions. He stated that one cannot read Para 69 of the Tunis Agenda in isolation but must read it with Paras 70 and 71. He mentioned that in 2005 the three paras were agreed upon as a  package. He noted the two different approaches to enhanced cooperation within the room viz, as purely governmental or as governmental with multistakeholder approaches. He said that which meaning was more appropriate was not clear in 2005 and is still not clear. He stated that the mapping of Intergovernmental cooperation on IG issues has been undertaken by the CSTD Working Group on Enhanced Cooperation. He also cited a number of Intergovernmental Organizations where Intergovernmental dialogue on internet related issues was already happening such as the ITU, CSTD and UNESCO. Hence, he stated that to say Enhanced Cooperation has not been launched is not accurate. He pointed out that the UN Secretary General launched it in 2006 as per the Tunis Agenda as mentioned in Zero Draft.

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