18 Jun 2014

Focus on Research: Governing New Technologies

Who regulates the internet? At the recent NETmundial conference, organised by Brazil’s president Dilma Rousseff in cooperation with the president of ICANN Fadi Chehadé, participants grappled with the highly contentious question of who governs the internet. Mira Burri, who is researching digital technologies within NCCR Trade Regulation work package 3, was there and described what progress was made in an interview with Sandra Flückiger. The interview was first published in German in the University of Bern online journal Uniaktuell.

The disclosures of NSA whistleblower Edward Snowden have shaken up the global internet governance system. Several state and non-state actors have until now set the rules for the internet and regulated its different aspects. For instance the Internet Corporation for Assigned Names and Numbers (ICANN) plays a central role in managing critical internet resources such as domain names. But pre-internet organisations like the International Telecommunication Union (ITU) and the World Trade Organization (WTO) matter too. The Snowden revelations have prompted unprecedented and real efforts to protect fundamental values such as national security and the private sphere. One such effort was the NETmundial conference held this spring in São Paulo.

What are the problems regarding the governance of the internet?
Debate is especially heated when it comes to how the rules are shaped. ICANN is not a conventional international organisation under international law but a private non-profit corporation under Californian law. Despite the development of the so-called multistakeholder governance approaches where all interested parties are drawn into the decision-making process, in the conventional state-centred view such bodies still have questionable legitimacy.

Yet the NETmundial conference was a global multistakeholder event…
Yes, the conference was open to all. On the one hand there were government representatives taking part, and on the other, scientists, experts, activists and other representatives of civil society and the industry. The conference showed that decision-making is possible with the multistakeholder approach. But it was also one, very intensive, exercise in seeking compromise.

So what came out of it?
The results of the conference have been interpreted in different ways – some people are euphoric and others disappointed. The truth probably lies somewhere in between. The concluding joint declaration – the 11-page NETmundial Multistakeholder Statement - does express some agreement on the fundamental principles of internet governance. The participants primarily recognise the key human rights of freedom of speech and freedom of association as well as protection of the private sphere as a basis for current and future governance of the internet. Other important points are transparency and openness in the regulation and development of systems, as well as respect for cultural and linguistic diversity.

Are there any concrete measures?
The Internet Governance Forum (IGF) – a global deliberative platform tackling different internet-related issues – is likely to gain more influence and ICANN could become more international. In this way, the multistakeholder approach has been strengthened and given new legitimacy. But it has to be stressed that the NETmundial declaration is in no way legally binding. Many of the principles remain at a very general level and do not go much further than already existing human rights conventions. Those responsible stress that the concluding document is a compromise and while not perfect is “good enough to be good”.

What will change for me now as an internet user?
In effect nothing has changed. Internet users won’t notice any technical or legal modifications. But one could argue that additional legal certainty has been created.

What still needs to be done?
A lot. There are many smaller and greater challenges to overcome. For instance, the NETmundial conference left open the question of a clear ban on online surveillance and on safeguarding the principle of net neutrality. The question of states’ jurisdiction in cyberspace also remained unanswered.

What are the next steps?
Following the Snowden affair the US stated its intention to give up control of ICANN. In future it is to be managed by a multistakeholder (but not international) institution representing different branches. But the exact form and function of this body are unclear, as is how the transition from the current system will be accomplished. The international community has until September 2015 to define this. I am particularly interested to see how willing states are to give up positions of power in this process and to commit to the multistakeholder model.