A blog on why norms matter online

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I'm a Post-Doc Fellow at the Cluster of Excellence "Normative Orders" of the University of Frankfurt and lecturer at the Institute of International Law of the University of Graz, Austria. I've studied international law in Graz, Geneva and at Harvard Law School. I enjoy thinking and writing about Internet Governance and discussing and shaping the future of the Internet

Saturday, March 10, 2012

Good News or Bad News? On NTIA, ICANN, ITU and Why Internet Governance is No Puppet Show

An interesting day for Internet Governance: The National Telecommunications and Information Administration (NTIA) says ICANN “does not meet the requirements” for renewal of its functions regarding managing the root zone file, but there are layers upon layers to the question whether that's good news for the international community. 

It is, if it leads to more accountability in the next application of ICANN, which is sure to follow. 

It isn't, if it leads to more governmental oversight in defining the global public interest vis-a-vis the web. 

Right now, it seems to early to tell, which way the are leaning.

In a statement issued today, NTIA says

"Based on the input received from stakeholders around the world, NTIA added new requirements to the IANA functions’ statement of work, including the need for structural separation of policymaking from implementation, a robust companywide conflict of interest policy, provisions reflecting heightened respect for local country laws, and a series of consultation and reporting requirements to increase transparency and accountability to the international community".
Basically, it seems like a good idea for ICANN to separate policy-making from implementation - though we can ask whey ICANN should engage in policymaking at all. BUt that's a different question. 

It also seems very sensible to provide for more consultation and increased reporting requirements to ensure "transparency and accountability to the international community". What's not too like about that? 

What's not to like, is that this decisions has multiple layers that make the assessment of the benevolent or malevolent character of the NTIA decision tricky.

Kevin Murphy writes that the NTIA and ICANN didn't quite see eye to eye during the application phase. Importantly,

"one of the key sticking points is the NTIA’s demand that the IANA contractor – ICANN – must document that all new gTLD delegations are in “the global public interest”." This demand is a way to prevent another controversy such as the approval of .xxx a year ago, which the Governmental Advisory Committee objected to on the grounds that it was not the “the global public interest”.[...] [The]  IANA language could be described as “if the GAC objects, you must reject”."
Ensuring transparency and accountability to the international community is important, but the "international community" is not the Governmental Advisory Committee, which dinstincly lacks two of the three key stakeholders of Internet Governance: the private sector and civil society.

Murphy reminds us that "ICANN CEO Rod Beckstrom has previously stated that he believed such rules imposed by the US government would undermine the multistakeholder process." They would, if GAC were given the last word.

Another dimension to the NTIA decision is coupled with the discussion on, and preparation for, the ITU Summit later this year, where some states are pushing for a stronger role for governments - in the spirit of the proposal by China, Russia and other states of 2011 and the proposal by IBSA.

Murphy writes: 
"A strong GAC, backed by an enforceable IANA contract, is one way to field concerns that ICANN is not responsive enough to government interests."
So strengthening a single-stakeholder-body is better than risking involvement of the ITU, a two-stakeholder-organization (states and private sector) in a process that should enable multistakeholder input from all three stakeholders (states, private sector and civil society)?

It might be a way to field concerns, but strengthening GAC to the detriment of the multistakeholder approach would render multistakeholde-based human rights-sensitive Internet Governance a huge disservice. (And relying on the ITU, by the way, could too).

In fact, the  ITU  World Conference on International Telecommunications (WCIT-12) will, I suspect, fail to produce a treaty that will change fundamentally (or at all) Internet Governance as we know it and will, to no one's surprise actually, not result in the UN taking over the Internet. 

Well, no one might be wrong. There is that one guy known for overrreaching. In the Guardian,  ITU's secretary general, Hamadoun Touré, writes that the 
"aim of the conference is to review the global treaty widely credited for creating the basis of today's connected world, thus the international regulatory framework governing all ICT technologies."
The treaty refered to are the International Telecommunication Regulations (IRTs). And they  have clearly not created the basis of today's connected world, though they have contributed to its evolution. Similarly, the ITU (and the UN) won't take over the Internet, but they will (and should) contribute to Internet Governance. Especially the UN doesn't have a bad track record. 

Remember when the UN Secretary-General had to calm fears the UN would take over the Internet in the run-up to an important international conference? Only, it wasn't in 2012, it was in 2005. And the conference wasn't  the WCIT-12, but the Tunis Summit of the WSIS process that brought us the Tunis Commitment, a document that can with much more right than the IRTs be credited with "creating the basis of today's connected world". 

And what's that basis: multistakeholderism, that the ITU eschwes (it focuses on only two stakeholders, states and the private sector) and, centrally, human rights and international law.

Let us recall the Tunis Commitment's clear wording on that subject:

2. We reaffirm our desire and commitment to build a people-centred, inclusive and development-oriented Information Society, premised on the purposes and principles of the Charter of the United Nations, international law and multilateralism, and respecting fully and upholding the Universal Declaration of Human Rights, so that people everywhere can create, access, utilize and share information and knowledge, to achieve their full potential and to attain the internationally agreed development goals and objectives, including the Millennium Development Goals.
3. We reaffirm the universality, indivisibility, interdependence and interrelation of all human rights and fundamental freedoms, including the right to development, as enshrined in the Vienna Declaration. We also reaffirm that democracy, sustainable development, and respect for human rights and fundamental freedoms as well as good governance at all levels are interdependent and mutually reinforcing. We further resolve to strengthen respect for the rule of law in international as in national affairs.

How's that for two paragraph's for the new ITRs? 

But back to the NTIA decison.

At dot.nxt, Kieran McCarthy writes that the decision took ICANN by surprise. He thinks that NTIA is trying to force ICANN to up its game and "start treating the IANA contract like a professional contractor". ICANN, again, is under pressure as NTIA "is using the IANA contract as a blunt tool to force it to make the changes that it wants to see."

Now, for "the changes that [NTIA] wants to see": Are they good or bad? This, unfortunately, leads us straight back to the top of this entry. They may be, they may not be.

I agree with Kieran that we're seeing a "dangerous politicization of a crucial technical function". 

But when he writes

"Behind the puppet show of Internet governance, the hidden hands of influence are popping into view."
I have to contradict him strongly. 

Internet Governance is not a puppet show. Internet Governance is an increasingly complicated normative machinery with moving parts, emerging actors, multiple stakeholders and a  normative vocabulary that itself challenges how international rules have been made for decades. 

Calling Internet Governance a "puppet show" is the same as discounting international altogether, just because some states violate it. 

Let's recall Louis Henkin’s famous words: 
“[A]lmost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” (How Nations Behave, 47 (2d ed. 1979) (emphasis omitted)
I admit that it might be too early in the normative structuring of  Internet Governance to conclude that all stakeholders observe almost all basic principles of Internet Governance and observe almost all of their obligations almost all of the time. 


But this is mainly because neither the basic principles nor the obligations have crystallized completely. The normative trend, however, points squarely in that direction. 

Just because ICANN has to rework its application for the IANA contract, is not the occasion to question Internet Governance as such. 

Update: 
Great post by Milton Mueller, who is less equivocal than I am and argues that all of the implications "seem to be bad". He is much for generous to ICANN than I was and criticizes that it is  
 "being bludgeoned with the largest possible stick to abandon key elements of its hard-fought, multistakeholder based policy to add new top level domains: a threat to move the IANA contract to someone else."
Milton is less generous with NTIA and by extension the US government: They have "completely lost perspective on the larger issues" he writes, and are  "pursuing some very short term political gains that will have some very long-lasting and potentially disastrous costs."

He concludes with a gloomy outlook:
"The U.S. Commerce Department needs to understand that it is toying with the complete destruction of ICANN as a governance institution. Its aggressive use of unilateral state power to change community-developed policy makes its lip service to multistakeholderism and its warnings against UN or ITU-based inter-governmentalism ring hollow."
 This provides some important background to the issues I've discussed above.




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