Dystopia, Utopia, or Realpolitik?
Richard Hill*, February 2013
The first discussions regarding issues that are now included under the rubric “Internet governance” date back to the 1990s. Discussions were formally brought into the arena of intergovernmental discussions in 1998, at the Plenipotentiary Conference of the International Telecommunication Union (ITU) and continued in particular at the World Summit on the Information Society (WSIS) in 2005. Discussions have tended to be difficult, and little consensus has been reached, regarding a number of issues. The factors that make discussions difficult are financial, geopolitical, but also ideological. Some of the ideological approaches are idealistic and propose governance models that are new and innovative; other approaches are conservative and propose either to continue unchanged the current Internet governance arrangements, or to apply traditional intergovernmental mechanisms to at least some aspects of Internet governance.
This paper concludes that an agreed international framework is needed in order to ensure that Internet governance can evolve to meet the interests of all concerned parties.
Communications in general, and telecommunications in particular, have always been understood to be important factors in facilitating economic, political, and military activities, including economic imperialism (Hills, 2007; Hill, 2013b; Powers and Jablonski (2014, Chapter 2)). Thus, it is not surprising that states have always shown an interest in communications and telecommunications, recognizing that intervention may be needed to achieve certain outcomes (which may include ensuring competition) (Kim, 2005), and even providing such facilities as state services. In a remarkably prescient article Baran (1967) discusses the question of whether, and if so how, interconnected computers should be considered a public utility.1
In terms of research and development, and early deployment, the Internet (see below for a definition of the term) is no exception to the propensity of states to be involved in telecommunications. Its protocols were developed by researchers funded by the US Defense Department Advanced Projects Research Agency (DARPA), and its early deployment was funded in the US first by DARPA, then by the National Science Foundation (NSF), and in Europe by various state-owned or state-funded universities (History of Internet, 2013; Schiller, 2014b, p. 356).
Initial use of the Internet was restricted to non-commercial activities. However, by 1990 a significant number of private companies were connected to the Internet, so there was pressure to allow commercial use of the network2. And indeed this was formalized in 1995 when the National Science Foundation ended its sponsorship of certain backbone services (History of Internet, 2013).
The growth of the commercial use of the Internet was comparable to that of other modern commercial telecommunications technologies (Hannemyr, 2003), that is, very rapid, even if it has not (or at least not yet) reached as many people as mobile telephony3. This rapid growth, and the consequent importance of the Internet for economic activities, has, not surprisingly, led to a renewed interest by states in various matters related to or arising out of the Internet. (Goldsmith and Wu, 2006; Mueller, 2010; McKinnon, 2012).
However there is little agreement amongst states regarding their proper role, and indeed there are even disagreements within states. Some consider that the current situation is perfectly acceptable, or at least that it should be allowed to evolve without too much government intervention. Others consider that the current situation is not satisfactory for at least certain issues, so some form of government involvement is required. At the international level, the privileged role of the United States of America with respect to certain matters has been criticized (Mueller, 2013; Rousseff , 2013; Harris, 2013a).
But, amongst those who criticize the current situation, there are differing views regarding what changes to make. As we will see, some propose solutions involving little or no government control, others propose a greater role for governments. In particular, the scope for intergovernmental involvement is the subject of sharp disagreements.
Given the differences in views, discussions, were first started in the mid-1990s (IAHC, 2013), continued formally at the intergovernmental level starting in 1998 (at the Plenipotentiary Conference of the International Telecommunication Union (ITU)4) and were pursued in greater depth starting in 2003 (at the World Summit on the Information Society (WSIS), see Mueller (2010)); they continue to this day in various forums, including the 2012 World Conference on International Telecommunications (WCIT), see Hill (2013), the 2012 World Telecommunication Policy Forum (WTPF), the ITU Council Working Group on International Internet-related public policy issues (CWG-Internet), the continuing WSIS process, and no doubt future ITU Plenipotentiary Conferences.
This paper briefly introduces the background behind such discussions, then discusses the differing points of view and ideologies underpinning the discussions. It then outlines possible future scenarios.
2. A Short History of Internet Governance
To begin with, it is important to note that the term “the Internet” is used, in practice, to refer to very different things. At times it is used to refer to the network properly speaking, at times it is used to refer to the very broad collection of products and services that are made available using networks based on the TCP/IP protocol, and at times it is used as a paradigm for free and open communications, see Hill (2014). In this paper we will use the broad definition adopted in 1995 by the US Federal Networking Council (Kahn and Cerf, 1999, footnote xv):
“the global information system that:
(i) is logically linked together by a globally unique address space based on the Internet Protocol (IP) or its subsequent extensions/follow-ons;
(ii) is able to support communications using the Transmission Control Protocol/Internet Protocol (TCP/IP) suite or its subsequent extensions/follow-ons, and/or other IP-compatible protocols; and
(iii) provides, uses or makes accessible, either publicly or privately, high level services layered on the communications and related infrastructure described herein.”
As any network, the Internet requires some central coordination, in particular with respect to allocation and use of identification resources: names and address; and with respect to the protocols used. The latter type of coordination is called standardization, and it will not be discussed in any detail in this paper.
The names most commonly used in the Internet are “domain names” and the addresses most commonly used are “IP addresses”. These correspond, functionally, to telephone numbers (which are names) and to lesser-known telephony addresses5. Access to naming and addressing resources is essential for telecommunications and has typically been managed by national regulatory authorities at the national level (European Parliament, 2002, considering (20)), and by the International Telecommunication Union at the international level (ITU, 2013a), because it has been considered that it is a matter of public policy to ensure that such resources are made available to all players in an equitable manner.6
However, for the Internet, the naming and addressing resources have not been managed by national regulatory authorities.7During the early years, when the Internet was a small academic network, management of names and addresses was provided by an individual, Jon Postel, funded by the US government. As the network grew, it became apparent that the central coordination function could not be handled by a single person, and that rather more sophisticated procedures and processes would probably have to be developed and implemented to assure proper coordination. (Internet Assigned Names Authority, 2013)
Consequently, the Internet Society, and other organizations, facilitated a process that resulted in certain recommendations (IAHC, 2013). However, the US government unilaterally rejected those recommendations and proposed instead a different approach, which led to the creation of the Internet Corporation for Assigned Names and Numbers (ICANN) (Mueller, 1999; Froomkin, 2000; Mueller, 2002; Weber, 2009). As Mueller (1999, p. 508) puts the matter the creation of ICANN “reflected a behind-the-scenes agreement that IANA-ISOC and their corporate allies would be the ones in control of the new organization and that a specific program acceptable to the trademark lobby, the US Commerce Department and the Europeans would be executed.”
In the approach initially proposed by the United States, its role, as a government, would have been phased out relatively rapidly. But that did not happen and the US, as a government, retained a priviliged role (Kruger, 2013; Schiller, 2014b, p. 356)); as Powers and Jablonski (2014, Chapter 6) put the matter: “The trope of industry self-regulation was simply a ruse, placating powerful stakeholders just enough while still retaining substantial regulatory authority”. Not surpringly, this led to criticism from other governments (Schiller, 2014b, pp. 357 and 359), with explicit discussions of the matter taking place at WSIS (Mueller, 2010).
In relation with those discussions, a working definition of Internet governance was adopted by the Working Group on Internet Governance (WGIG): “Internet governance is the development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet”.
Discussions regarding Internet governance issues have continued ever since, see the good summary in Chenou and Radu (2013).
2.1 Contentious issues
Many issues have been the subject of discussions at both the national and international level (WGIG, 2005, para. 13 ff). A good summary, and classification, of the issues is found in Kurbalija (2013). National authorities (governments, legislators and courts) have generally been able to find answers that are generally (but not unanimously) accepted nationally, even if certain issues (in particular related to freedom of speech and intellectual property rights) are relatively more contentious. A good discussion of the complexities of the freedom of speech issue is given by Powers and Jablonski (2014, Chapter 1), who show how it has been framed in ways that favor US commercial interests.
There has long been a tendency of some to consider that the Internet is, or at least should be, exempt from the laws that govern other activities. According to them, the Internet should be governed by rules that are developed by “the Internet community” through informal methods. This school of thought can be referred to as “separatists” (Reidenberg, 2005, p. 1951). As the cited author put the matter “… the underlying fight is a profound struggle against the very right of sovereign states to establish rules for online activity.”
While this struggle has consistently been resolved in favor of sovereign states and the applicability of existing laws at the national level whenever concrete cases arise8 (Wright, 1991; Gringras, 1997; Goldsmith and Wu, 2006; Reed, 2012), proponents of at least moderate versions of the separatist approach are still active (Mueller, 2010; Maher, 2012; Feld, 2013; Mueller, 2013a)9, even though the prevalent view is that conventional legal and regulatory mechanisms should be adapted as appropriate and applied to the Internet (Brownsword, 2012). As the UK put the matter:10 “ … the internet does not exist in a different dimension and the law in the offline world should also apply in the online world”. Indeed, a number of countries, including the UK, have adapted their offline laws to prohibit certain online behavior that is considered undesirable11.
However, at the international level, there has been considerably less agreement. Mueller (2010) discusses in some depth some of the contentious issues. This paper discusses three particular issues that have been extensively discussed in formal intergovernmental forums, in particular in preparations for WSIS (WGIG, 2005, para. 15-18, 21-22) in the ITU. They are (1) issues related to the management of Internet domain names and addresses; (2) the financial issues related to the increasing use of the Internet; (3) issues related to the relative lack of security of the Internet, including spam and lack of privacy. It is worth noting that issues (2) and (3) were identified as early as 1967, see Baran (1967, p. 79 and pp. 81-73).
Much of the focus of recent discussions has been on freedom of expression and human rights. Mueller (2010, p. 269) states: “… a denationalized liberalism favors a universal right to receive and impart information regardless of frontiers, and sees freedom to communicate and exchange information as fundamental and primary elements of human choice and political and social activity”. Mueller even proposes mechanisms to achieve this goal.
Liddicoat and Doria (2012) propose a specific mechanism: “ … it may be that in some situations, the technical community will not only be best placed but have the sole ability to protect human rights standards in relation to the free flow of information and ideas, precisely because they are the only community able to see the human rights issues that have been hard-wired into the very way in which the Internet operates.”
An analysis of the Liddcoat and Doria approach is found in Hill (2014). An impact of the discussions regarding human rights issues on WCIT is found in Hill (2013). The topic of human rights will not be further discussed here.
2.1.1 Management of Internet domain names and addresses
The initial discussions that led to the creation of ICANN focused on two specific issues: the lack of competition (at the time) in the domain name market and the difficulties for trademark owners to recover quickly domain names containing their trademarks. Those particular issues were addressed by ICANN immediately after it was created. (Mueller, 2002).
However, the management of Internet domain names and addresses is fundamentally different from the management of names and addresses of other telecommunication technologies in two ways: (1) it is carried out by private-sector entities and is partly carried out without any formal governmental supervision12; (2) to the extent that there is formal governmental supervision13, it is provided by a single country, the United States of America (Mueller, 2002; WGIG, 2005, para. 15; Kruger, 2013).
Thus it is not surprising that there have been numerous discussions regarding these two points: should governments be more involved in the management of Internet names and addresses? If not, then why is there a special role for the USA?
2.1.2 Financial issues
Starting around 1998 some developing countries expressed concern about the fact that they had (and mostly still have) to pay the full cost of connecting to the Internet, whereas in the past they received payments for connections to the telephony system (Hill, 2013, p. 9 ff.). Some developing countries took the view that the financial arrangements for the Internet were inappropriate and should be changed (WGIG, 2005, para. 15; Fernàndez González, 2011). As Powers and Jabonski (2014, Chapter 1) say: “While heavy-handed government controls over the internet should be resisted, so should a system whereby internet connectivity requires the systematic transfer of wealth from the developing world to the developed.” The high cost of international Internet connectivity was recognized as an issue by WSIS (para. 27(c) of the Tunis Agenda) and led to many discussions in the ITU, but with little agreement (ITU, 2013)14.
Further, as described in Hill (2013b, section 5) there are disagreements regarding whether the current financial arrangements for the Internet will result in sufficient returns on investment to finance the rollout of sufficient new infrastructure (AT Kearney (2010) and conversely Weller and Woodcock (2013)). Such discussions are by no means recent: McKie-Mason and Varian (1994) explained the economics of the Internet and why some sort of pricing method might be needed to reduce congestion and optimize investments.
Mueller (2010, p. 57 ff.) describes well how the financial issues that were supposed to be the focus of discussion at WSIS got sidetracked and replaced by discussions of Internet governance in general and the management of domain names and addresses in particular.
Financial issues were also expected to be the focus of WCIT and indeed they played a very important role during the preparatory process for that conference (Hill, 2013) and resulted in an agreement to revise significantly the financial provision of the ITRs (Hill, 2013, pp. 104 ff.).
However, as at WSIS, financial matters were pushed into the background by discussions of other issues, in particular the relation between security and freedom of speech.
While there is a relation between security and freedom of speech, this author argues that the security provisions discussed and approved at WCIT could not adversely affect human rights (Hill, 2013; Hill, 2013a).
It is well known that the Internet lacks pervasive security mechanisms and that this has led to a proliferation of malware and spam (Talbot, 2006; WGIG, 2005, para. 17-18; Deibert, 2013; Brunton, 2013; Hill, 2014). While there is broad agreement that security should be improved and spam should be combated (Hill, 2013, p. 77), there is no agreement on how best to do that.
Some take the view that private-sector initiatives should be privileged, others take the view that government actions are also required (including in the US, see Powers and Jablonski (2014, Chapter 7)); but, within this latter group, there are divergent views regarding the need for formal intergovernmental agreements and regarding the forums in which discussions should take place (Hill, 2014, section 6; Hill and Powers, 2013).
At the international level, there are strong disagreements regarding how best to address various issues that have been contentious for many years. Much of the disagreement arises because of fundamentally different ideological outlooks. This situation is explored in the next section.
3. The Differing Ideologies
“The Internet began with the spirit of ‘hope springs eternal’. Today, sadly, we live in a time of cyberphobia.” (Deibert, 2013, p. 8). Although this statement refers to cyberwar, cybercrime, and pervasive surveillance, it well captures the sentiments of most parties in the Internet governance discussions. The Internet has grown rapidly and it is undeniably an important component of modern economies. Thus it has undoubtedly been a positive force. However, as any new technology, it has engendered some economic changes and, in addition, it has had side-effects which some consider negative (Hill, 2014; AlQurashi, 2013), for example spam (for an in-depth treatment of spam, see Brunton (2013)).
Apart from maintaining the status quo, the differing views regarding Internet governance could initially be characterized as:
Promoting an idealistic view in which Internet users themselves govern the Internet.
Promoting a traditional view in which governments govern the Internet nationally, and coordinate through traditional intergovernmental organizations to govern it internationally.
However, during WSIS, a third paradigm emerged, and was officially sanctioned in the Tunis Agenda (Mueller, 2010, p. 78):
Promoting a view in which different interest groups are recognized as having specific roles and responsibilities.
This third paradigm is now referred to as “the multi-stakeholder model” and its virtues are extolled by its proponents. Some of those proponents go further, and take the view that all of the several stakeholders should have equal rights, that it, governments should not have any particular preeminent role (Brown, 2013; Doria, 2013). That paradigm is discussed in more detail below.
Not surprisingly, there is no agreement in favor of any one paradigm. Depending on one’s point of view, one can characterize the paradigms as utopia (Utopia, 2013), dystopia (Dystopia, 2013), or realpolitik (Realpolitik, 2013). This is discussed in more detail below.
Idealists would like to find Internet governance arrangements that maintain lofty ideals such as freedom of speech. And indeed concrete proposals for how to achieve that have been made (Mueller, 2010).
Realists are of the view that such proposals are utopian. Indeed, from a literal point of view, they are utopian because, as we saw earlier, governments apply national laws, including restrictions on freedom of speech, to the Internet. A good criticism of the idealistic approach is found in Morozov (2011).
But in fact even the multi-stakeholder model is an utopia, because current arrangements do not correspond to any of the various definitions that have been proposed for “the multi-stakeholder model”.
5. The Multi-Stakeholder Model
As discussed in Hill (2014), the Internet is the first public communication system that allows anybody to publish at low cost information that can be easily accessed anywhere in the world. This has facilitated the creation of transnational communities of people with common interests, and no one state has authority over those communities. Thus it is not surprising that the Internet has reinforced and galvanized pre-existing challenges to the power of states and it has given rise to questions regarding the transfer of certain powers to non-governmental institutions (Weber, 2010; Weber and Heinrich, 2011; Raymond and Smith, 2013). It has also raised questions regarding the need for states to take measures to avoid or mitigate extra-territorial effects of their actions, and to avoid or mitigate interfering with the national sovreignty of other states with respect to matters where sovereignty is retained (Weber, 2010, pp. 17-18).
It should also be noted that the Internet is a system in which information provided by the users is used to generate advertising revenue streams that finance services provided at no direct cost to the user (such as e-mail, search engines, and social networks) (EPFL Congress on Privacy and Surveillance, 2013; Wyatt and Miller, 2013; McChesney, 2013; Hundt, 2014; Marwick, 2014). This might seem to be an anodyne matter of contract law: a company agrees to provide services in exchange for information, and users agree to provide information in exchange for services. But in fact such agreements affect third parties and have far-reaching (possibly unintended) effects on privacy and freedom (Moglen, 2013, pp. 2-3; Hundt, 2014). Thus they affect society as a whole, are matters of public policy, and thus a legitimate concern of governments (Moglen, 2013, p. 4; Hundt, 2014; Marwick, 2014).
The current arrangements for Internet governance are often referred to as “the multi-stakeholder model”. That model has been defined as engaging “technologists, the private sector and civil society in a bottom-up, consensus driven approach to standards setting, Internet development, and management” (Shipman Wentworth, 2013). Note that this formulation excludes governments, but that governments are included in other formulations15. While some consider that governments should be on an equal footing with other stakeholders, including private companies16, others consider that, as provided in the Tunis Agenda, governments should have a special role with respect to public policy17.
Key aspects of the multi-stakeholder model are the representation of the different interest groups, and the stress on consensus, meaning that formal decision-making processes such as voting should be avoided. The idea that different interest groups should meet, as such, to discuss issues and agree solutions is of course not new: indeed it can be traced back to ancient times, and it is related to debates regarding collective versus individual rights and actions (Watkins, 2013).
In fact, the multi-stakeholder model is related to the corporatist model of governance (Mueller, 2013c). In the corporatist model, society (or at least some aspects of society) are organized by major interest groups on the basis of common interests (Corporatism, 2013) and even exercise public authority (Berger, 1983, p. 19). This is exactly what is called for in the multi-stakeholder model of Internet governance: as already noted, some proponents of that model take the view that governments are just one more interest group. As Powers and Jablonski (2014, Chapter 1) put the matter: “ … the discourse of multistakeholderism is used to legitimize arrangements benefiting powerful, established actors like the US and its robust ICT private sector.” While the concept of multi-stakeholderism is relatively recent, the concept of the US (and other) countries using state power to favor domestic telecommunication companies is hardly new.18 As Schiller (2014b, p. 356) puts the matter: “… in practice … the Internet’s supposedly bottom-up decision-making processes are disproportionately responsive to U.S. preferences”.
It is worth noting that the multi-stakeholder model was not instrumental in the creation and early deployment of the Internet. Indeed the creation and early deployment were the work of academics funded initially by the US Department of Defence and later by various academic institutions (a detailed account is given by Powers and Jablonski (2014, Chapter 3). Subsequently, commercial companies developed products and services, and provided the infrastructure allowing users to access those products and services. Thus the Internet followed the same development cycle as did other communication technologies, see Wu (2010). See also Foster and McChensey (2011) for a good analysis of the matters outlined above.
It is also worth noting that the current Internet governance arrangements don’t actually conform to a pure multi-stakeholder model, because some important areas are managed by entities that are not themselves multi-stakeholder.
For example, participants in the Internet Engineering Task Force (IETF) tend to represent the interests of manufactuers and users of network equipment; participants in the Regional Internet Registries (RIRs), which manage IP addresses, tend to represent the interests of Internet service provides. Thus, those entities are not truly multi-stakeholder in terms of actual representation. Further, in some cases there appears to have been some filtering of participation in certain goups (Gurstein, 2013); actual participation is largely limited to those who are adequately funded, speak English, and have certain technical knowledge (Chenou and Radu, 2013a, p. 195); and certain subgroups (for example those dealing with security) are not particularly diverse, open or transparent (Schmidt, 2013, pp. 185-186). Yet the actual participation, and the motivations of those who participate, are important factors that can affect the legitimacy of a participative process (Cornwall, 2008).
ICANN is truly multi-stakeholder, because the participants do represent very different interest groups (Weber, 2009). But governments have different rights than other stakeholders: on the one hand it is the Governmental Advisory Committee (GAC) is the only group singled out as having a special role in giving advice, on the other hand because the GAC’s representative to the ICANN Board cannot vote. In this sense, governments have a lesser role in ICANN than other stakeholders. (And ICANN has, at times, ignored advice even from the US government (Harris, 2013b).)
Mueller (2013b) makes the point that states operate in their own self-interest, which is not necessarily the interest of some other group such as the community of Internet users. In particular, states tend to take measures to control entities that might undermine or threaten their power.19
But Mueller’s cogent comments on states apply, by analogy, to other types of entities. Private corporations will take measures to maximize profits (and such measures may not be aligned with the public interest (Harris, 2013a), in particular with respect to security (Schmidt, 2013, p. 173)). Civil society groups will take measures that reflect the interests of their particular constituencies. And so on.
Thus, each of the component entities of a multi-stakeholder governance model will attempt to obtain outcomes that meet their particular goals: higher profits for companies, more control for governments, specific ideals for civil society.
Since those outcomes are contradictory, and indeed sometimes mutually exclusive, it is not surprising that little consensus is reached in multi-stakeholder discussions of Internet governance. That is, such multi-stakeholder discussions tend to perpetuate the status quo. Since the status quo favours the US, it is not surprising that the US wages a concerted campaign to maintain the multi-stakeholder model and consequently the status quo (Schiller, 2014b, p. 357).