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Monday, January 7, 2013

Cyberlaw Predictions: International Pressure on Internet Governance

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This post is the ninth in a series of predictions from legal and business experts about the directions cyberlaw policy might take in 2013, solicited by editors of BNA's Electronic Commerce & Law Report during the closing weeks of 2012. We asked that the remarks be brief -- something along the lines of a Twitter "tweet" or an elevator pitch. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts responded, producing 307 separate assessments, predictions, or just plain complaints regarding any of the many legal subject areas that affect online businesses.

Most folks in the internet community are passionate about keeping the government role in internet policymaking to an absolute minimum. They've held their own for the past few decades, but now that the internet has become such a great economic and social force, fending off pressure from governments to control how and where the internet works is a constant battle in the online industry.

The most recent skirmish took place in Dubai last December, when U.S. negotiators rejected a telecom treaty produced at the World Conference on International Telecommunications (WCIT), largely due to concerns about treaty language relating to “internet governance.” U.S. negotiators feared that inclusion of internet governance language in the treaty would bring with it great involvement from the International Telecommunication Union and other governments who have expressed a keen interest in asserting greater control over the internet.

ampersands

The fight to keep the United Nations/ITU/Russia/China et al out of the internet governance business now moves to Geneva, where the Fifth World Telecommunication/ICT Policy Forum (WTPF) will be held May 14-16. Unlike WCIT, which dealt with a broad spectrum of telecommunications issues, the WTPF talks will be devoted exclusively to internet governance.

Discussions at WTPF will be guided by the issues outlined in ITU Secretary-General Hamadoun Toure's discussion paper on internet governance. Toure's paper doesn't come out and advocate for any particular policy position. However, the overall tone of the paper is very critical of the Internet Corporation for Assigned Names and Numbers and is supportive of greater government involvement in internet policymaking.

The discussion paper is written in a maddening, faux-neutral style that doesn't quite succeed in projecting an impartial author. Toure's discussion of the topic of internet governance is sprinkled with dozens of drive-by shootings like "Some note [insert criticism of ICANN here]" and "Some take the view [insert criticism of ICANN here]" and "Some have pointed out [insert criticism of ICANN here]." In fact, as I was reading the paper again this morning, I came across so many invocations of the authority of "Some," and so little effort to examine the accuracy of Some's assertions, that I started taking notes. I found it amusing. Perhaps all diplomats speak this way.

The following lists Toure's many citations to the authority of "Some" and in parenthesis the number of times Some was invoked in that manner:

  • "Some are concerned" (3 times)
  • "Some have raised concerns" (1)
  • "There is some concern" (1)
  • "Some remain concerned" (1)
  • "Some note" (7)
  • "Some have stated" (6)
  • "Some say" (5)
  • "Some have expressed concern" (1)
  • "Some believe" (1)
  • "Some recommend" (1)
  • "According to some" (2)
  • "Some have clarified" (1)
  • "Some have pointed out" (1)
  • "Some others point out" (4)
  • "Some have cautioned" (2)
  • "Some have stressed" (1)
  • "Some have suggested" (3)
  • "Some have commented" (1)
  • "Some others identify a specific role for governments" (1)
  • "Some hold the view" (4)
  • "Some take the view" (2)

In nearly every case, Some had a zinger for ICANN or a complaint that governments are not sufficiently involved in internet governance. If Some believes that the International Telecommunication Union has no business regulating the internet, Toure didn't mention it.

The WSIS Forum 2013, another UN-sponsored conference on internet governance questions, will be taking place in Geneva during the WTPF event. Later in 2013, the ITU will hold its plenipotentiary meeting in Korea, where internet governance issues will certainly come up again.

The experts' views:

The Internet is what it is because most governments haven't meddled with it. We need to keep it that way. Paul Stahura, @stahura, CEO, Donuts Inc., Bellevue, Wash.

It is ultimately the users that define what the Internet is and what it will become. Lynn St. Amour, @LynnStAmour, President/CEO, Internet Society, Geneva, Switzerland/Reston, Va.

WCIT shows that U.S. and EU can no longer set global Internet policy by fiat. That's bad news for those that like online privacy and freedom of expression. Harold Feld, @haroldfeld, Senior Vice President, Public Knowledge, Washington, D.C.

The unprecedented implosion of the ITU's treaty process in Dubai will be seen by historians as the first and most dramatic step toward the inevitable dismantling of the state-centric, government-controlled, monopoly-bolstering, repression-friendly, pre-Internet regulatory regime for global communications networks. Andrew McLaughlin, @McAndrew, Entrepreneur-in-Residence, betaworks, New York, N.Y.

Considering the anti-SOPA/PIPA movement, the defeat of ACTA, and the mobilization against the ITU's World Conference on International Telecommunications, 2012 can be seen as the year the internet created its own global polity. Milton Mueller, @miltonmueller, Professor, Syracuse University School of Information Studies, Syracuse, N.Y.

The internet belongs to everyone--but as more people rely on it as part of their daily lives who is in charge of regulating it? In what situations? How can companies and individuals in different countries protect themselves in a global marketplace that is still subject to national laws? David Mitnick, @domainskate, Founder and President, Domain Skate LLC, New York, N.Y.

National governments claim that they are going to bring "order" to the global internet, but a world consisting of 192 sovereign, competing authorities is the very definition of anarchy. Milton Mueller, @miltonmueller, Professor, Syracuse University School of Information Studies, Syracuse, N.Y.

You may not like ICANN. But WCIT showed us that ICANN's multistakeholder model of internet governance--warts and all--is still far better than the alternative. Kristina Rosette, @kristinarosette, Of Counsel, Covington & Burling LLP, Washington, D.C.

A move to have governments regulate the internet through the International Telecoms Union has failed, but the pressure won't go away. We will continue to see sustained pressure to change the way the internet is governed. Emily Taylor, @etaylaw, Consultant, Emily Taylor Consultancy Limited, Oxford, United Kingdom.

In 2013, look out for repercussions from the ITU's December 2012 World Conference on International Telecommunications. Bids by some U.N. member states to govern the cost of internet traffic and regulate the internet itself may pave the way for more attempts to curb the freedom of enterprise, choice and innovation that the internet has given us all. Stephane Van Gelder, @stephvg, Chairman and Managing Director, Stephane Van Gelder Consulting Ltd., United Kingdom/France.

The U.N. Human Rights Council resolution of 6/29/2012 will begin to take on real meaning. It states that "the same rights that people have offline must also be protected online," so those opposed to due process and freedom of expression online beware! Kathryn Kleiman, @KleimK, Internet Counsel, Fletcher Heald & Hildreth, Arlington, Va.

In 2012 Peru joined the countries that officially regulate basic principles for net neutrality. During 2013 complementary rules and regulations should be issued shaping the legal framework for telecommunications and internet regulation in the country. Oscar Montezuma, @montezumaypanez, Partner, Montezuma & Panez Consultores Legales, Lima, Peru.

2013 will see increasing sophistication and effectiveness by many governments--from China to India to Saudi Arabia to South Korea and beyond--in recasting their internet control agendas as efforts to combat fraud, hacking, pornography, child exploitation, copyright infringement, and terrorism. Andrew McLaughlin, @McAndrew, Entrepreneur-in-Residence, betaworks, New York, N.Y.

Internet governance is not a monolithic concept--it constantly evolves to embrace such issues as intellectual property. Multistakeholder processes and transparency, therefore, should also be reflected in all Internet-related intellectual property discussions. Konstantinos Komaitis, @kkomaitis, Policy Advisor, The Internet Society, Geneva.

Do we want an Internet defined by governments, or an Internet defined by our imagination? As we are preparing for the review of the 10th anniversary of the World Summit on the Information Society (WSIS), we will need to re-emphasize the importance of the open Internet model of standards and policy development processes in a multistakeholder framework. This is the key to the success of the Internet! Markus Kummer, Vice President, Public Policy, Internet Society, Geneva.

The International Telecommunication Union's agenda for increased internet regulation away from the successful multi stakeholder model, backed by a number of nation states, marks the single greatest threat to the stability, governance, and openness of the Internet. Adrian Kinderis, @AdrianKinderis, Chief Executive Officer, ARI Registry Services, Melbourne & Los Angeles.

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