NETmundial meeting seeks to chart future of internet governance

The NETmundial "Global Multistakeholder Meeting on the Future of Internet Governance" took place in Brazil on April 22, 23 and 24 2014 and saw more than 800 delegates from around the world, representing governments, business, civil society, academia and the technical community (ICANN, ISOC, IETF, regional internet registries and W3C), seek to chart the future of internet governance and debate the key principles on which the Internet should evolve.

Given the revelations by Edward Snowden on the surveillance of internet communications by the NSA, there was concern that the meeting itself might be reduced to an acrimonious debate, and the US government will no doubt be pleased that the final statement makes no direct reference to the NSA data collection programme of internet communications. This was encompassed more generally by the statement that:

"Mass and arbitrary surveillance undermines trust in the Internet and trust in the internet governance ecosystem. Collection and processing of personal data by state and non-state actors should be conducted in accordance with international human rights law."

The meeting culminated in a (non-binding) eight-page statement which discusses two critical factors, namely the principles of ‘internet governance’ and a roadmap for the future evolution of the ‘internet governance ecosystem’.

Whilst it certainly sets the stage for the next major events this year that will affect the course of internet governance, namely the IGF meeting in Istanbul, Turkey, and the ITU meeting in Busan, Korea, together with the ICANN meetings in London and Los Angeles, the document falls short of the "Magna Carta for the Internet" which was called for in an opening statement delivered by Tim Berners Lee.

The complexities of internet governance are underlined by the fact that the NTIA announced on March 15 2014 that it would transition the stewardship of the IANA functions, and indeed it was this announcement that proved to be a key factor defining the direction of the NETmundial conference itself. The process of the transition of the supervision of the IANA function looks like it may be dealt with within the ICANN community (as announced by the NTIA on March 15) and indeed ICANN is taking the lead on this now. The goal is for a completed transition by September 2015. Whilst this may be possible, the importance of the subject means it has to be better to spend the time to get it right, rather than do it quickly and get it wrong. 

However, the plan facilitating the NTIA's exit and the broader issue of improved ICANN accountability are "very inter-related", as stated during NETmundial by ICANN CEO Fadi Chehade. He stated that ICANN would launch a community-driven process to strengthen its accountability, and that this process would be "interdependent" with the transition of IANA functions away from US government oversight. Here there will be much debate as many stakeholders both within and outside the ICANN community will find it hard to agree to a IANA transition proposal which is not accompanied by a robust, reliable and enforceable ICANN accountability mechanism. The role of ICANN is central - and in the future may be one where it has those IANA functions - but it still needs to be careful of its role and its multi-stakeholder foundation. There will be much deliberation in the coming months on the inter-related matters of IANA transition, continued ICANN accountability and the future of internet governance. ICANN itself looks to be at the centre of that and is setting aside specific time in its upcoming June 2014 meeting to ensure effective and comprehensive public dialogues on the transition of the NTIA stewardship of the IANA function, as well as the new ICANN accountability track.

The NETmundial statement supports the principles of a decentralised and multi-stakeholder (ie, non-governmental) driven internet ecosystem, which must be committed to the principles of openness, fairness, accessibility, security and safety. According to the statement, the evolution of the Internet Government ecosystem should be based upon the following principles:

• Multi-stakeholder - internet governance should be built on democratic, multi-stakeholder processes, ensuring the meaningful and accountable participation of all stakeholders, including governments, the private sector, civil society, the technical community, the academic community and users. The respective roles and responsibilities of stakeholders should be interpreted in a flexible manner with reference to the issue under discussion.
• Open, participative, consensus driven governance - the development of international internet-related public policies and internet governance arrangements should enable the full and balanced participation of all stakeholders from around the globe, and made by consensus, to the extent possible.
• Transparent - decisions made must be easy to understand, processes must be clearly documented and follow agreed procedures, and procedures must be developed and agreed upon through multi-stakeholder processes.
• Accountable - mechanisms for independent checks and balances, as well as for review and redress, should exist. Governments have primary, legal and political accountability for the protection of human rights.
• Inclusive and equitable - internet governance institutions and processes should be inclusive and open to all interested stakeholders. Processes, including decision making, should be bottom-up, enabling the full involvement of all stakeholders, in a way that does not disadvantage any category of stakeholder.
• Distributed - internet governance should be carried out through a distributed, decentralised and multi-stakeholder ecosystem.
• Collaborative - internet governance should be based on and encourage collaborative and cooperative approaches that reflect the inputs and interests of stakeholders.
• Enabling meaningful participation - anyone affected by an internet governance process should be able to participate in that process. Particularly, internet governance institutions and processes should support capacity building for newcomers, especially stakeholders from developing countries and underrepresented groups.

The outcome of NETmundial overall is balanced and brings with it some improvements on the text from the Tunis Declaration (WSIS 2005) arguably also improving the role of governments - and there was a heavy participation of governments at NETmundial with differing opinions as to the multi-stakeholder approach.

The conference itself did enable the various actors to come to agreement on common positions concerning the governance of the Internet, but these are nevertheless broad-brush principles and the road map is not that precise, which means that trying to put into action the principles will likely prove difficult. 

Different stakeholders view the results differently, of course. The civil society regretted that the notion of ‘net neutrality’ was not retained as a principle outcome of the conference, although it was pleased that the concepts of an open Internet and individual rights to freedom of expression and information were retained. However, the same principle of openness and non-restrictive use of the Internet could potentially be used to circumvent consumer protection, IP rights, data protection and privacy, so that in turn it is a concern to some in the private sector. The civil society also lamented that the liability of intermediary service providers was not discussed in greater depth given its importance globally, and some would like to see more debate there - which will certainly come. However, the civil society was pleased with the notions supported by democratic governments of the inclusion as a principle of the right to privacy and the fact that this includes the need for protection by law from arbitrary or unlawful surveillance, collection, treatment or use of personal data. 

It seems that the definition of ‘multi-stakeholder’ remains rather nebulous and needs to both include and recognise the interests of business more fully. Importantly, the ‘multi-stakeholder’ approach itself is something which all governments need to be on board with, which is not the case at present. Whilst many interpreted the conference as a success for the ‘multi-stakeholder’ approach and backing the role of ICANN, subject to its accountability and transparency, Russia, India and China, along with other developing world nations, underlined their support for a UN-led, government centric approach to internet governance. Those nations collectively comprise almost half the planet's population. As such, one has to question what the future has to hold and whether a stronger IGF, along with the UN-affiliated ITU, might provide a more fertile ground for such views and take the lead from ICANN. Clearly, this is a concern for ICANN, and ICANN is in need of an accountability update which is stronger and better than it is today. We are reaching a critical time in determining how ICANN maintains and expands its global legitimacy in a post-IANA transitioned world. Perhaps ICANN needs to be the facilitator. In any event, and whatever the stage on which internet governance is set to evolve, the future would appear to include much more engagement by governments.

There is little doubt that the Internet is a global resource and there is a widespread view that it should be run in the public interest. Given the multitude of stakeholders with diverging interests, this remains a significant challenge for all to find and accept shared principles and rules. 

David Taylor, Hogan Lovells LLP, Paris